`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`___________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`DISH NETWORK L.L.C.,
`Petitioner
`
`v.
`
`BROADBAND iTV, INC.,
`Patent Owner
`___________________
`
`Case IPR2020-01267
`Patent 10,028,026 B2
`___________________
`
`
`PATENT OWNER’S OBJECTIONS TO PETITIONER’S EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(b)(1)
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`
`
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`Pursuant to 37 C.F.R. § 42.64(b)(1), Patent Owner Broadband iTV, Inc.,
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`
`
`(“BBiTV”) hereby objects under the Federal Rules of Evidence (“FRE”) to the
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`admissibility of Exhibits 1011 (“CableLabs Specification”), 1012 (“Poland Decl.”),
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`1022 (“Unified Patents”), 1023 (“Judge Albright Patent Statistics”), 1025 (“Family
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`Chart for the ’997 patent”), 1028 (“Claim 1 with Examiner Additions
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`Highlighted”), 1030 (“Comcast Annual Report”), 1031 (“Time Warner 10-K”),
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`1032 (“AT&T U-Verse Wiki”), 1038 (“Explorer 4200 Set-Top”), 1039 (“Samsung
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`OpenCable Certification”), 1040 (“Razor V3 Article”), 1041 (“CableLabs
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`OpenCable – Wayback Machine”), 1042 (“Google Article – Wayback Machine”),
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`1043 (“Mpeg-2 Wiki”), 1044 (“Sony’s PS3 Debut Article”), 1045 (“Fed. Cir.
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`Model Patent Jury Instructions”), 1046 (“CableLabs Library”), 1047 (“Merriam-
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`Webster.com Definition”), and 1048 (“Document Detail from CableLabs”), which
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`Petitioner DISH Network, L.L.C. (“DISH”) filed with the Petition on July 10,
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`2020.
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`BBiTV timely objects under 37 C.F.R. § 42.64(b)(1) within the allowed ten
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`business days of institution of trial in this proceeding. BBiTV files and serves
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`DISH with these objections to provide notice that BBiTV may move to exclude
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`Exhibits 1011, 1012, 1022, 1023, 1025, 1028, 1030-1032, and 1038-1048, or
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`portions thereof, under 37 C.F.R. § 42.64(c).
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`- 1 -
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`
`I.
`
`EXHIBIT 1011
`FRE 401, 402, and 403: BBiTV objects to Exhibit 1011 for including
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`information that is irrelevant or whose probative value to any ground upon which
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`trial was instituted is substantially outweighed by the danger of unfair prejudice,
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`confusing the issues, undue delay, wasting time, or needlessly presenting
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`cumulative evidence.
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`FRE 801 and 802: To the extent DISH relies on the contents of this
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`document for the truth of the matter asserted, BBiTV objects to Exhibit 1011 as
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`inadmissible hearsay under FRE 801 and 802 that does not fall under any
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`exception.
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`FRE 901 and 902: BBiTV objects to Exhibit 1011 as not properly
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`authenticated under FRE 901 because DISH has not presented evidence sufficient
`
`to support a finding that the document in question is what DISH claims. There is
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`no evidence that the document is self-authenticating under FRE 902.
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`II. EXHIBIT 1012
`FRE 401, 402, and 403: BBiTV objects to Exhibit 1012 for including
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`information that is irrelevant or whose probative value to any ground upon which
`
`trial was instituted is substantially outweighed by the danger of unfair prejudice,
`
`confusing the issues, undue delay, wasting time, or needlessly presenting
`
`cumulative evidence.
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`- 2 -
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`FRE 602: BBiTV objects to paragraphs 4-7 of Exhibit 1012 because the
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`declarant lacks personal knowledge.
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`FRE 701: To the extent DISH relies on the contents of this document,
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`BBiTV objects to Exhibit 1012 as inadmissible for being improper opinion
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`testimony by a lay witness.
`
`FRE 801 and 802: To the extent DISH relies on the contents of this
`
`document for the truth of the matter asserted, BBiTV objects to Exhibit 1012 as
`
`inadmissible hearsay under FRE 801 and 802 that does not fall under any
`
`exception.
`
`FRE 901: BBiTV objects to Exhibit 1012 as not properly authenticated
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`under FRE 901 because DISH has not presented evidence sufficient to support a
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`finding that the document in question is what DISH claims and because Exhibit
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`1012 lacks a proper S-Signature under 37 C.F.R. §§ 1.4(d)(2), 1.66, 1.68,
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`42.6(a)(4), and 42.63(a).
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`III. EXHIBITS 1022, 1023, 1025, 1028, 1030-1032, AND 1038-1048
`FRE 106: BBiTV objects to Exhibits 1030, 1031, 1047, and 1048 because
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`they are incomplete.
`
`FRE 401, 402, and 403: BBiTV objects to Exhibits 1022, 1023, 1025, 1028,
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`1030-1032, and 1038-1048 for including information that is irrelevant or whose
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`probative value to any ground upon which trial was instituted is substantially
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`- 3 -
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`outweighed by the danger of unfair prejudice, confusing the issues, undue delay,
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`wasting time, or needlessly presenting cumulative evidence.
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`FRE 801 and 802: To the extent DISH relies on the contents of these
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`documents for the truth of the matter asserted, BBiTV objects to Exhibits 1022,
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`1023, 1025, 1028, 1030-1032, and 1038-1048 as inadmissible hearsay under FRE
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`801 and 802 that does not fall under any exception.
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`FRE 901 and 902: BBiTV objects to Exhibits 1022, 1023, 1025, 1028, 1030-
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`1032, and 1038-1048 as not properly authenticated under FRE 901 because DISH
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`has not presented evidence sufficient to support a finding that the document in
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`question is what DISH claims. There is no evidence that the documents are self-
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`authenticating under FRE 902.
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`IV. EXHIBIT 1002
`BBiTV objects to Exhibit 1002 to the extent it relies on Exhibits 1011, 1012,
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`1022, 1023, 1025, 1030-1032, and 1038-1048 for the same reasons as provided
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`above. BBiTV also objects to Exhibit 1002, specifically at least ¶¶ 20-23, 27-30,
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`34, 35, 57, 59, 62, 63, 65, 73, 77, 84, 90, 92, 96, 135-141, 143, 144, 149, 152, 154,
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`156, 158, 162, 166, 174, 177, 178, 179, 180, 182, 186, 188, 193, 197, 203, 210,
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`212, 213, 224, 230, 231, 234, 236, 239, 245, 254, 268, 277, 281, 287, 293, 295,
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`296, 299, 300, and 302 as improper expert testimony under FRE 702 and 703. The
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`testimony is based on insufficient facts or data, is not the product of reliable
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`- 4 -
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`principles and methods, and does not reliably apply the appropriate principles and
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`methods to the facts of the case. BBiTV further objects to at least ¶¶ 1-21, 25, 34-
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`95, 97-102, 105-108, 110, 112-143, 159, 160, 193, 194, 200, 216, 217, 222-224,
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`227, 230, 237, 238, 244, 246, 254, 255, 262, 264-267, 269-276, 278, 279, 281, 303,
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`and 304 as being inadmissible as irrelevant under FRE 401, 402, and 403 because
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`they have not been relied upon in support of any argument made in the Petition.
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`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/Jason A. Fitzsimmons/
`
`Jason A. Fitzsimmons
`Registration No. 65,367
`Counsel for Patent Owner
`
`Date: February 4, 2021
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
`
`
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`- 5 -
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`
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`CERTIFICATION OF SERVICE
`The undersigned hereby certifies that a true and correct copy of the
`
`foregoing PATENT OWNER’S OBJECTIONS TO PETITIONER’S
`
`EVIDENCE PURSUANT TO 37 C.F.R. § 42.64(B)(1) was electronically served
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`via e-mail in its entirety on February 4, 2021, upon the following counsel of record
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`for Petitioner:
`
`Alyssa Caridis (Lead Counsel)
`K. Patrick Herman (Back-up Counsel)
`ORRICK, HERRINGTON, & SUTCLIFFE, LLP
`A8CPTABDocket@orrick.com
`P52PTABDocket@orrick.com
`
`
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/Jason A. Fitzsimmons/
`
`Jason A. Fitzsimmons
`Registration No. 65,367
`Counsel for Patent Owner
`
`Date: February 4, 2021
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
`
`
`
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`16236290.docx
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