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
`
`U.S. Patent No. 10,028,026
`
`Case No. IPR2020-01267
`
`OBJECTIONS TO PATENT OWNER’S EVIDENCE CITED IN ITS
`FORMAL RESPONSE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`DISH NETWORK L.L.C.,
`Petitioner
`
`v.
`
`BROADBAND ITV, INC.,
`Patent Owner
`
`U.S. Patent No. 10,028,026
`
`Case No. IPR2020-01267
`
`OBJECTIONS TO PATENT OWNER’S EVIDENCE CITED IN ITS
`FORMAL RESPONSE
`
`
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioner DISH Network L.L.C.
`
`(“DISH” or “Petitioner”) hereby objects to the exhibits cited and relied upon in
`
`Patent Owner’s May 10, 2021 response and the associated declarations of Dr.
`
`Michael Shamos, Mr. Milton Diaz Perez, Mr. Leighton Chong, Mr. Clif Kagawa,
`
`and Mr. Michael Kunkel and all accompanying exhibits on the following grounds.
`
`For each objected to exhibit, the pertinent Federal Rule of Evidence (“FRE”) or other
`
`rule that gives rise to the objection is provided, along with a brief summary of the
`
`basis of the objection.
`
`I.
`
`DECLARATIONS
`1. Exhibit 2035 – Declaration of Dr. Michael Shamos
`Petitioner objects to the following paragraphs in Ex. 2035:
`
`Paragraph(s)
`
`Objection
`
`¶¶ 38-39
`
`FRE 402. The portions of this paragraph relating
`
`to alleged support for the claimed “internet-
`
`connected digital device” are irrelevant because
`
`they relate to passages that do not purport to
`
`describe any device that is part of the purported
`
`invention of the ’026 patent, and in some cases are
`
`passages from unincorporated portions of other
`
`patent applications.
`
`-1-
`
`
`
`Paragraph(s)
`
`Objection
`
`FRE 702. The statements and opinions set forth in
`
`these paragraphs are not based on sufficient facts or
`
`data, and are not the result of the application of
`
`accepted and reliable principles and methods to the
`
`facts of the case.
`
`¶ 40
`
`FRE 402. The portions of this paragraph relating
`
`to alleged support for the claimed “internet-
`
`connected digital device” are irrelevant because
`
`they relate to passages that do not purport to
`
`describe any device that is part of the purported
`
`invention of the ’026 patent, and in some cases are
`
`passages from unincorporated portions of other
`
`patent applications.
`
`FRE 702. The statements and opinions set forth in
`
`these paragraphs are not based on the expert’s
`
`scientific, technical, or other specialized
`
`knowledge, are not based sufficient facts or data,
`
`and are not the result of the application of accepted
`
`-2-
`
`
`
`Paragraph(s)
`
`Objection
`
`and reliable principles and methods to the facts of
`
`the case.
`
`¶ 52
`
`FRE 702. The statements and opinions set forth in
`
`these paragraphs are not based on the expert’s
`
`scientific, technical, or other specialized
`
`knowledge, are not based on sufficient facts or
`
`data, and are not the result of the application of
`
`accepted and reliable principles and methods to the
`
`facts of the case.
`
`¶¶ 67-69
`
`FRE 702. The statements and opinions set forth in
`
`these paragraphs are not based on the expert’s
`
`scientific, technical, or other specialized
`
`knowledge, are not based on sufficient facts or
`
`data, and are not the result of the application of
`
`accepted and reliable principles and methods to the
`
`facts of the case.
`
`¶ 102
`
`FRE 402. The portions of this paragraph relating
`
`to upload speeds in the year 2000 are irrelevant
`
`because obviousness is considered at the time of
`
`-3-
`
`
`
`Paragraph(s)
`
`Objection
`
`alleged invention. Similarly the observation that
`
`content providers produce continuous, 24 hour
`
`programming is likewise irrelevant, as there is no
`
`requirement that all such programming be uploaded
`
`to the claimed Web-based content management
`
`system.
`
`¶¶ 127-129
`
`FRE 402. The portions of this paragraph relating
`
`to whether devices discussed in Kelts can receive
`
`and display video content is irrelevant, as BBiTV
`
`has taken the position that no such requirements are
`
`in the claim challenged claim.
`
`Exhibit 2036 – Declaration of Milton Diaz Perez
`2.
`Petitioner objects to the following paragraphs in Ex. 2036:
`
`Paragraph(s)
`
`Objection
`
`¶ 4
`
`FRE 402. The testimony in this paragraph is
`
`irrelevant because this paragraph lacks information
`
`as to when the events described within occurred.
`
`-4-
`
`
`
`Paragraph(s)
`
`Objection
`
`¶ 5
`
`FRE 106. This paragraph is incomplete in that in
`
`cites and discussed Exhibits 2048 and 2049, which
`
`have not been provided.
`
`FRE 402. This paragraph’s discussion of Exhibits
`
`2048 and 2049, which have not been provided, is
`
`irrelevant.
`
`FRE 901. This paragraph fails to properly
`
`authenticate Exhibits 2048 and 2049, which have
`
`not been provided.
`
`37 C.F.R. § 42.51(b)(1)(i). Exhibits 2048 and
`
`2049 are cited in this paragraph but were
`
`improperly not served with the citing testimony.
`
`¶ 12
`
`FRE 402. The portions of this paragraph relating
`
`to Ex. 2061 and 2069 are irrelevant because the
`
`quoted portions discuss background of the alleged
`
`invention and do not purport to describe any
`
`invention allegedly conceived by Mr. Perez.
`
`Further, the discussed passage in Ex. 2069 is
`
`irrelevant because it was not authored by Mr.
`
`-5-
`
`
`
`Paragraph(s)
`
`Objection
`
`Perez, does not reflect conception by Mr. Perez and
`
`is not included in the material that is properly
`
`incorporated into Ex. 2061. Further, the sentence
`
`“At the time, we were working on developing
`
`products on the Navic platform, which, as their
`
`patent application states, could support internet
`
`connected digital set-top boxes that can receive
`
`content (e.g., video advertisements, internet
`
`browsing),” is not supported by the Navic
`
`applications, and pertains to the activities of others
`
`and is irrelevant as to whether Mr. Perez conceived
`
`of an “Internet-connected digital device.”
`
`¶ 13
`
`FRE 402. The portions of this paragraph relating
`
`to description in the March Draft concerning a set-
`
`top box that received video content that is uploaded
`
`elsewhere using the Internet is irrelevant as to
`
`whether the March Draft discloses an “Internet-
`
`connected digital device.”
`
`-6-
`
`
`
`Paragraph(s)
`
`Objection
`
`¶ 14
`
`FRE 402. The sentence “The April Development
`
`Document shows that videos are uploaded via a
`
`web-based interface” is irrelevant as to whether
`
`Mr. Perez conceived of an “Internet-connected
`
`digital device” as it concerns a different device.
`
`Further, the discussion of “iTV Products” and
`
`“Java Servlets” is irrelevant to demonstrating Mr.
`
`Perez’s conception of an “Internet-connected
`
`digital device.” In particular, the statement “At the
`
`time, Java Servlets were components used by
`
`servers as part of the Internet to transmit
`
`information using an Internet Protocol” is
`
`irrelevant because it does not indicate that Mr.
`
`Perez had conceived of using Java Servlets “as part
`
`of the Internet” in connection with his alleged
`
`invention, and the mention a Java Servlet is
`
`irrelevant to showing conception of a “Internet-
`
`connected digital device.” Further, the discussion
`
`of the ’106 Publication is irrelevant because it was
`
`-7-
`
`
`
`Paragraph(s)
`
`Objection
`
`not authored by Mr. Perez, and does not reflect
`
`conception by Mr. Perez. Further, this paragraph’s
`
`discussion of Exhibit 2071 is irrelevant because
`
`that exhibit is dated to May 20201 and is thus
`
`irrelevant to showing how one of ordinary skill in
`
`the art would have use the term at the relevant time.
`
`FRE 602. The sentence “At the time, Java Servlets
`
`were components used by servers as part of the
`
`Internet to transmit information using an Internet
`
`Protocol” is not based on the witness’s personal
`
`knowledge.
`
`FRE 702. The statements and opinions set forth in
`
`these paragraphs are not based on sufficient facts or
`
`data, and are not the result of the application of
`
`accepted and reliable principles and methods to the
`
`facts of the case.
`
`¶ 24
`
`FRE 402. This paragraph is irrelevant to
`
`demonstrating Mr. Perez’s conception of an
`
`“Internet-connected digital device.” In particular,
`
`-8-
`
`
`
`Paragraph(s)
`
`Objection
`
`the general statements regarding a particular use of
`
`certain technologies are not evidence that Mr.
`
`Perez conceived of using said technology for the
`
`same purpose and in the same context. Further,
`
`this paragraph’s discussion of Exhibit 2071 is
`
`irrelevant because that exhibit is dated to May
`
`20201 and is thus irrelevant to showing how one of
`
`ordinary skill in the art would have use the term at
`
`the relevant time.
`
`FRE 602. Portions of this paragraphs are not
`
`based on the witness’s personal knowledge.
`
`FRE 702. The statements and opinions set forth in
`
`these paragraphs are not based on sufficient facts or
`
`data, and are not the result of the application of
`
`accepted and reliable principles and methods to the
`
`facts of the case.
`
`¶ 36
`
`FRE 402. The portions of this paragraph
`
`discussing March Draft and “drill-down”
`
`navigation through hierarchical menus are
`
`-9-
`
`
`
`Paragraph(s)
`
`Objection
`
`irrelevant as none of the cited passages of the
`
`March Draft show that Mr. Perez had conceived of
`
`“wherein a first template of the plurality of
`
`different display templates is used as the particular
`
`display template for the templatized display for
`
`displaying the first level of the hierarchical
`
`structure and wherein a second template of the
`
`plurality of different display templates is used as
`
`the particular display template for the templatized
`
`display for displaying the second level of the
`
`hierarchical structure.”
`
`¶¶ 38-39, 48
`
`FRE 402. These paragraphs are irrelevant because
`
`they merely discuss templates and “drill-down”
`
`navigation through hierarchical menus but do not
`
`show different templates used for different levels of
`
`the hierarchical menu to suggest that Mr. Perez had
`
`conceived of “wherein a first template of the
`
`plurality of different display templates is used as
`
`the particular display template for the templatized
`
`-10-
`
`
`
`Paragraph(s)
`
`Objection
`
`display for displaying the first level of the
`
`hierarchical structure and wherein a second
`
`template of the plurality of different display
`
`templates is used as the particular display template
`
`for the templatized display for displaying the
`
`second level of the hierarchical structure.”
`
`¶¶ 56-57.
`
`FRE 402. These paragraphs are irrelevant because
`
`neither the paragraphs nor the cited materials from
`
`other documents show content that was provided
`
`by a content provider being organized on the basis
`
`of said content providers, and thus the contents of
`
`these paragraphs are irrelevant as to whether Mr.
`
`Perez conceived of “wherein the one or more
`
`category terms associated with the first video-on-
`
`demand program content correspond to one or
`
`more content providers and wherein the
`
`hierarchically arranged electronic program guide is
`
`organized according to the content provider.”
`
`-11-
`
`
`
`Paragraph(s)
`
`Objection
`
`¶ 58
`
`FRE 402. The portions of this paragraph relating
`
`to Ex. 2061 and 2069 are irrelevant because the
`
`quoted portions discuss background of the alleged
`
`invention and do not purport to describe any
`
`invention allegedly conceived by Mr. Perez.
`
`Further, the discussed passage in Ex. 2069 is
`
`irrelevant because it was not authored by Mr.
`
`Perez, does not reflect conception by Mr. Perez and
`
`is not included in the material that is properly
`
`incorporated into Ex. 2061.
`
`¶ 59
`
`FRE 402. The portions of this paragraph
`
`discussing “ITV Product(s)” and “Java Servlets”
`
`are irrelevant to demonstrating Mr. Perez’s
`
`conception of a set top box that is an “Internet-
`
`connected digital device.” Further, the sentence
`
`“Navic used these Java Servlets to communicate
`
`with our ITV Product (set top boxes)” is irrelevant
`
`as to whether Mr. Perez conceived of a set top box
`
`that is an “Internet-connected digital device.”
`
`-12-
`
`
`
`Paragraph(s)
`
`Objection
`
`Further, this paragraph’s discussion of Exhibit
`
`2071 is irrelevant because that exhibit is dated to
`
`May 20201 and is thus irrelevant to showing how
`
`one of ordinary skill in the art would have use the
`
`term at the relevant time.
`
`FRE 602. To the extent this paragraph intends to
`
`imply through its citation to EX2071 that the
`
`mention of a Java Servlet in EX2070 indicates that
`
`Mr. Perez has conceived of a set-top box with
`
`internet connectivity, that assertion is not based on
`
`the witness’s personal knowledge.
`
`FRE 702. To the extent this paragraph intends to
`
`imply through its citation to EX2071 that the
`
`mention of a Java Servlet in EX2070 indicates that
`
`Mr. Perez has conceived of a set-top box with
`
`internet connectivity, that assertion is not based
`
`sufficient facts or data, and is not the result of the
`
`application of accepted and reliable principles and
`
`methods to the facts of the case.
`
`-13-
`
`
`
`Paragraph(s)
`
`Objection
`
`¶ 60
`
`FRE 402. This paragraph’s statement regarding
`
`disclosures in the March draft that mention “use of
`
`the internet” is irrelevant because the statements
`
`concerning use of the internet are not made
`
`concerning the claimed “Internet-connected digital
`
`device” but instead relate to other aspects of the
`
`described system. Furthermore, the suggestions
`
`that these other parts of the described system must
`
`necessarily use Internet Protocol because they use
`
`the internet is likewise irrelevant to whether the
`
`claimed “Internet-connected digital device uses the
`
`Internet Protocol”
`
`FRE 602. The assertion in this paragraph that
`
`implies that use of the Internet necessarily involved
`
`Internet Protocol is not based on Mr. Perez’s
`
`personal knowledge.
`
`FRE 702. The assertion in this paragraph that
`
`implies that use of the Internet necessarily involved
`
`Internet Protocol is not based sufficient facts or
`
`-14-
`
`
`
`Paragraph(s)
`
`Objection
`
`data, and is not the result of the application of
`
`accepted and reliable principles and methods to the
`
`facts of the case.
`
`¶¶ 61-72
`
`FRE 402. These paragraphs are irrelevant to
`
`showing conception and reduction to practice
`
`because the March Draft does not evidence
`
`conception of the subject matter of claims 1
`
`through 9 of the ’026 patent and the ’192
`
`application does not constructively reduce claims 1
`
`through 9 of the ’026 patent to practice. Moreover,
`
`these paragraphs are irrelevant because they fail to
`
`show conception or diligence concerning the
`
`subject matter claimed in claims 1 through 9 of the
`
`’026 patent
`
`¶ 65
`
`FRE 106. This paragraph is incomplete in that in
`
`cites and discussed Exhibit 105, which has not been
`
`provided.
`
`FRE 402. This paragraph’s discussion of Exhibit
`
`105, which has not been provided, is irrelevant.
`
`-15-
`
`
`
`Paragraph(s)
`
`Objection
`
`FRE 901. This paragraph fails to properly
`
`authenticate Exhibit 105, which has not been
`
`provided.
`
`37 C.F.R. § 42.51(b)(1)(i). Exhibit 105 is cited in
`
`this paragraph but was improperly not served with
`
`the citing testimony.
`
`¶¶ 73-78
`
`FRE 402. These paragraphs are irrelevant to
`
`showing conception and diligent reduction to
`
`practice because they fail to show conception or
`
`diligence concerning the subject matter claimed in
`
`claims 1 through 9 of the ’026 patent
`
`All paragraphs
`
`FRE 402. Exhibit 2036 is irrelevant to showing
`
`conception and reduction to practice because the
`
`’192 application does not constructively reduce
`
`claims 1 through 9 of the ’026 patent to practice.
`
`Exhibit 2037 – Declaration of Leighton Chong
`3.
`Petitioner objects to the following paragraphs in Ex. 2037:
`
`-16-
`
`
`
`Paragraph(s)
`
`Objection
`
`¶ 4
`
`FRE 802. The statements regarding prior
`
`discussions in this paragraph are inadmissible
`
`hearsay and are not corroborated.
`
`All paragraphs
`
`FRE 402. Exhibit 2037 is irrelevant to showing
`
`conception and reduction to practice because the
`
`March Draft does not evidence conception of the
`
`subject matter of claims 1 through 9 of the ’026
`
`patent and the ’192 application does not
`
`constructively reduce claims 1 through 9 of the
`
`’026 patent to practice. Moreover, Exhibit 2037 is
`
`irrelevant because it fails to show conception or
`
`diligence concerning the subject matter claimed in
`
`claims 1 through 9 of the ’026 patent.
`
`Exhibit 2038 – Declaration of Clifton Kagawa
`4.
`Petitioner objects to the following paragraphs in Ex. 2038:
`
`Paragraph(s)
`
`Objection
`
`¶ 2
`
`FRE 402. The content of this paragraph is
`
`irrelevant.
`
`-17-
`
`
`
`Paragraph(s)
`
`Objection
`
`¶ 4
`
`¶ 6
`
`¶ 7
`
`¶ 9
`
`FRE 402. The content of this paragraph is
`
`irrelevant.
`
`FRE 402. The content of this paragraph is
`
`irrelevant.
`
`FRE 402. The content of this paragraph is
`
`irrelevant.
`
`FRE 402. The content of this paragraph is
`
`irrelevant.
`
`FRE 602. The content of this paragraph concerning
`
`Mr. Perez’s educational and work history are not
`
`based on the witness’s personal knowledge, and/or
`
`fails to establish the foundation for said knowledge.
`
`¶ 11
`
`FRE 402. This paragraph is irrelevant to showing
`
`conception and reduction to practice because the
`
`March Draft does not evidence conception of the
`
`subject matter of claims 1 through 9 of the ’026
`
`patent and the ’192 application does not
`
`constructively reduce claims 1 through 9 of the
`
`’026 patent to practice.
`
`-18-
`
`
`
`Paragraph(s)
`
`Objection
`
`¶ 12
`
`FRE 402. This paragraph is irrelevant because it
`
`fails to show conception or diligence concerning
`
`the subject matter claimed in claims 1 through 9 of
`
`the ’026 patent. Further, the portions of this
`
`paragraph concerning BBITV’s business plans are
`
`irrelevant as they do not pertain to the activities of
`
`Mr. Perez.
`
`FRE 701. The statements concerning how “hard”
`
`and “diligently” Mr. Perez was working are
`
`improper lay opinion testimony.
`
`FRE 402. This paragraph is irrelevant because it
`
`does not purport to relate to documents authored by
`
`Mr. Perez or concepts conceived by Mr. Perez.
`
`FRE 602. The content of this paragraph concerning
`
`Mr. Perez’s meetings with Navic are not based on
`
`the witness’s personal knowledge, and/or fails to
`
`establish the foundation for said knowledge.
`
`¶ 17
`
`¶ 19
`
`¶ 21
`
`FRE 402. This paragraph is irrelevant to showing
`
`conception and reduction to practice because the
`
`-19-
`
`
`
`Paragraph(s)
`
`Objection
`
`¶ 22
`
`¶ 23
`
`March Draft does not evidence conception of the
`
`subject matter of claims 1 through 9 of the ’026
`
`patent and the ’192 application does not
`
`constructively reduce claims 1 through 9 of the
`
`’026 patent to practice.
`
`FRE 402. This paragraph is irrelevant to showing
`
`conception and reduction to practice because its use
`
`of the term “certain subject matter” is too vague.
`
`FRE 402. This paragraph is irrelevant to showing
`
`conception and reduction to practice because its use
`
`of the term “certain subject matter” is too vague.
`
`FRE 602. The sentence “Mr. Perez communicated
`
`the subject matter of his inventions to BBiTV’s
`
`patent attorney, Mr. Leighton Chong, who
`
`proceeded to draft the patent application that
`
`became the ’192 application” is not based on the
`
`witness’s personal knowledge, and/or fails to
`
`establish the foundation for said knowledge.
`
`-20-
`
`
`
`Paragraph(s)
`
`Objection
`
`¶¶ 25-26
`
`FRE 602. These paragraphs are not based on the
`
`witness’s personal knowledge, and/or fail to
`
`establish the foundation for said knowledge.
`
`¶ 31
`
`FRE 602. The content of this paragraph concerning
`
`Mr. Perez’s activities are not based on the witness’s
`
`personal knowledge, and/or fails to establish the
`
`foundation for said knowledge.
`
`FRE 701. The statements concerning how “hard”
`
`Mr. Perez was working and that he was “devoting
`
`as much of his time as possible to working on
`
`BBiTV’s patent application” are improper lay
`
`opinion testimony.
`
`¶¶ 32-33, 35, 39
`
`FRE 701. The statements concerning how “hard”
`
`or “diligently” Mr. Perez was working are
`
`improper lay opinion testimony.
`
`¶¶ 34-36, 38, 41
`
`FRE 602. These paragraphs are not based on the
`
`witness’s personal knowledge, and/or fail to
`
`establish the foundation for said knowledge.
`
`-21-
`
`
`
`Paragraph(s)
`
`Objection
`
`¶ 43
`
`FRE 602. The content of this paragraph concerning
`
`Mr. Perez’s activities are not based on the witness’s
`
`personal knowledge, and/or fails to establish the
`
`foundation for said knowledge.
`
`FRE 701. The statements concerning how “hard”
`
`Mr. Perez was working is improper lay opinion
`
`testimony.
`
`All paragraphs
`
`FRE 402. Exhibit 2038 is irrelevant to showing
`
`conception and reduction to practice because the
`
`’192 application does not constructively reduce
`
`claims 1 through 9 of the ’026 patent to practice.
`
`Moreover, Exhibit 2038 is irrelevant because it
`
`fails to show conception or diligence concerning
`
`the subject matter claimed in claims 1 through 9 of
`
`the ’026 patent.
`
`Exhibit 2103 – Declaration of Michael Kunkel
`5.
`Petitioner objects to the following paragraphs in Ex. 2103:
`
`-22-
`
`
`
`Paragraph(s)
`
`Objection
`
`¶ 10
`
`FRE 702. The statements and opinions set forth in
`
`this paragraph are not based on the expert’s
`
`scientific, technical, or other specialized
`
`knowledge.
`
`FRE 1002. The statements in this paragraph are
`
`improperly offered to prove the content of
`
`writings/recordings that are not in evidence.
`
`FRE 802. The statements in this paragraph are
`
`inadmissible hearsay and are offered for the truth
`
`of the matter asserted therein.
`
`II. OTHER EXHIBITS
`1.
`Exhibit 2040
`FRE 802: This exhibit is inadmissible hearsay and is offered for the truth of
`
`the matter asserted therein.
`
`FRE 402: This exhibit is irrelevant for the purpose that it is offered, as it
`
`shows that Comcast was offering VOD services years prior to the priority date of
`
`the ’026 patent and, in any event, is untethered to the claimed subject matter of the
`
`’026 patent.
`
`-23-
`
`
`
`Exhibit 2041
`2.
`FRE 802: This exhibit is inadmissible hearsay and is offered for the truth of
`
`the matter asserted therein.
`
`FRE 402: This exhibit is irrelevant for the purpose that it is offered, as it
`
`shows that Comcast was offering VOD services years prior to the priority date of
`
`the ’026 patent and, in any event, is untethered to the claimed subject matter of the
`
`’026 patent.
`
`Exhibit 2042
`3.
`FRE 802: This exhibit is inadmissible hearsay and is offered for the truth of
`
`the matter asserted therein.
`
`FRE 402: This exhibit is irrelevant for the purpose that it is offered, as it
`
`shows that Comcast was offering VOD services years prior to the priority date of
`
`the ’026 patent and, in any event, is untethered to the claimed subject matter of the
`
`’026 patent.
`
`Exhibit 2043
`4.
`FRE 802: This exhibit is inadmissible hearsay and is offered for the truth of
`
`the matter asserted therein.
`
`FRE 402: This exhibit is irrelevant for the purpose that it is offered, as the
`
`scope of Comcast’s deployment of its existing VOD services is irrelevant to
`
`whether the challenged claims of the ’026 patent are obvious.
`
`-24-
`
`
`
`Exhibit 2044
`5.
`FRE 802: This exhibit is inadmissible hearsay and is offered for the truth of
`
`the matter asserted therein.
`
`FRE 402: This exhibit is irrelevant for the purpose that it is offered, as the
`
`scope of Comcast’s VOD offerings in 2008 is untethered to the claimed subject
`
`matter of the ’026 patent, and is irrelevant to whether the challenged claims of the
`
`’026 patent are obvious.
`
`Exhibit 2045
`6.
`FRE 802: This exhibit is inadmissible hearsay and is offered for the truth of
`
`the matter asserted therein.
`
`FRE 402: This exhibit is irrelevant for the purpose that it is offered, as the
`
`centralization (or lack thereof) of Comcast’s VOD distribution is untethered to the
`
`claimed subject matter of the ’026 patent, and is irrelevant to whether the
`
`challenged claims of the ’026 patent are obvious.
`
`Exhibit 2046
`7.
`FRE 802: This exhibit is inadmissible hearsay and is offered for the truth of
`
`the matter asserted therein.
`
`FRE 402: This exhibit is irrelevant for the purpose that it is offered, as
`
`Comcast’s Express Lane service is untethered to the claimed subject matter of the
`
`’026 patent, and is irrelevant to whether the challenged claims of the ’026 patent
`
`are obvious.
`
`-25-
`
`
`
`Exhibits 2048 & 2049
`8.
`FRE 106. Exhibits 2048 and 2049 are discussed in paragraph 5 of Exhibit
`
`2036, but have not been provided.
`
`FRE 402. Exhibits 2048 and 2049 have not been provided and are as such
`
`there are irrelevant.
`
`FRE 901. Exhibits 2048 and 2049 have not been properly authenticated.
`
`37 C.F.R. § 42.51(b)(1)(i). Exhibits 2048 and 2049 are cited in paragraph 5
`
`of Exhibit 2036 but were not served with the citing testimony.
`
`Exhibits 2050-2054
`9.
`FRE 104(b). The relevance of Exhibits 2050-2054 to conception, reduction
`
`to practice, or diligence has not been established because no testimony explains
`
`Mr. Perez’s contributions, if any, to these documents.
`
`FRE 402. The relevance of Exhibits 2050-2054 to conception, reduction to
`
`practice, or diligence has not been established because no testimony explains Mr.
`
`Perez’s contributions, if any, to these documents.
`
`FRE 602. Exhibits 2050-2054 are not based on the witness’s personal
`
`knowledge, and/or fail to establish the foundation for said knowledge.
`
`10. Exhibit 2055
`FRE 402: This exhibit is irrelevant, and it is unclear for what purpose it is
`
`offered.
`
`-26-
`
`
`
`11. Exhibit 2056
`FRE 402: This exhibit is irrelevant for the purpose that it is offered, as
`
`paragraph 6 of Mr. Perez’s declaration cites this exhibit as support for the claim
`
`that he “recognized that a significant aspect of our new products was delivery of
`
`video content to a STB in a video-on-demand format,” but the Exhibit does not
`
`discuss or otherwise mention delivery of video content to a STB in video-on-
`
`demand format.
`
`12. Exhibit 2057
`FRE 402: This exhibit is irrelevant for the purpose that it is offered, as
`
`paragraph 6 of Mr. Perez’s declaration cites this exhibit as support for the claim
`
`that he “recognized that a significant aspect of our new products was delivery of
`
`video content to a STB in a video-on-demand format,” but the Exhibit does not
`
`discuss or otherwise mention delivery of video content to a STB in video-on-
`
`demand format.
`
`13. Exhibit 2058
`FRE 402: This exhibit is irrelevant for the purpose that it is offered, as
`
`paragraph 6 of Mr. Perez’s declaration cites this exhibit as support for the claim
`
`that he “recognized that a significant aspect of our new products was delivery of
`
`video content to a STB in a video-on-demand format,” but the Exhibit does not
`
`discuss or otherwise mention delivery of video content to a STB in video-on-
`
`demand format.
`
`-27-
`
`
`
`14. Exhibit 2061
`FRE 104(b). This exhibit’s relevance to conception, reduction to practice,
`
`or diligence has not been established because it was not authored by Mr. Perez and
`
`no testimony explains Mr. Perez’s exact contributions to this document.
`
`FRE 402: This exhibit is irrelevant to showing conception and reduction to
`
`practice because this draft does not disclose each limitation of the challenged
`
`claims of the ’026 patent, and the ’192 application does not constructively reduce
`
`claims 1 through 9 of the ’026 patent to practice.
`
`15. Exhibit 2062
`FRE 402: This exhibit is irrelevant to showing conception and reduction to
`
`practice because this application does not disclose (i.e., evidence a constructive
`
`reduction to practice) each limitation of the challenged claims of the ’026 patent.
`
`16. Exhibit 2065
`FRE 106. This exhibit is incomplete in that it is clear from context that it is
`
`a reply to another communication, but that communication is not included.
`
`17. Exhibit 2068
`FRE 106. This exhibit is incomplete in that it is clear from context that the
`
`first email in the thread is a reply to another communication, but that
`
`communication is not included.
`
`-28-
`
`
`
`18. Exhibit 2069
`FRE 402. This exhibit is irrelevant to showing conception and reduction to
`
`practice because the portions of it that are cited discuss background of the alleged
`
`invention and do not purport to describe any invention allegedly conceived by Mr.
`
`Perez. Further, the discussed passage is irrelevant because it was not authored by
`
`Mr. Perez, does not reflect conception by Mr. Perez and is not included in the
`
`material that is properly incorporated into Ex. 2061.
`
`19. Exhibit 2070
`FRE 104(b). This exhibit’s relevance to conception, reduction to practice,
`
`or diligence has not been established because it was not authored by Mr. Perez and
`
`no testimony explains Mr. Perez’s exact contributions to this document.
`
`FRE 402: This exhibit is irrelevant to showing conception and reduction to
`
`practice because this draft does not disclose each limitation of the challenged
`
`claims of the ’026 patent, and the ’192 application does not constructively reduce
`
`claims 1 through 9 of the ’026 patent to practice.
`
`20. Exhibit 2071
`FRE 402. This exhibit is irrelevant to showing conception and reduction to
`
`practice because it does not indicate that Mr. Perez had conceived of using Java
`
`Servlets “as part of the Internet” or to serve an “Internet-connected digital device.”
`
`Moreover, this exhibit is dated to May 20201 and is thus irrelevant to showing how
`
`one of ordinary skill in the art would have use the term at the relevant time.
`
`-29-
`
`
`
`FRE 802. This exhibit is inadmissible hearsay being offered for the truth of
`
`the matter asserted therein.
`
`21. Exhibit 2072
`FRE 104(b). This exhibit’s relevance to conception, reduction to practice,
`
`or diligence has not been established because it was not authored by Mr. Perez and
`
`no testimony explains Mr. Perez’s exact contributions to this document.
`
`FRE 402: This exhibit is irrelevant to showing conception and reduction to
`
`practice because this draft does not disclose each limitation of the challenged
`
`claims of the ’026 patent, and the ’192 application does not constructively reduce
`
`claims 1 through 9 of the ’026 patent to practice.
`
`22. Exhibits 2106-2109
`FRE 106. These exhibits are incomplete in that it is clear from context that
`
`they are replies to other communications, but that communication is not included.
`
`23. Exhibits 2121-2122
`FRE 106. These exhibits are incomplete in that it is clear from context that
`
`they are replies to other communications, but that communication is not included.
`
`24. Exhibits 2123-2127
`FRE 402. These exhibits are irrelevant to showing conception or diligent
`
`reduction to practice because they fail to show conception or diligence concerning
`
`the subject matter claimed in claims 1 through 9 of the ’026 patent. Furthermore,
`
`the portions of these exhibits purporting to show activities that are not attributable
`
`-30-
`
`
`
`to Mr. Perez are irrelevant to showing conception, diligence, and reduction to
`
`practice by Mr. Perez.
`
`FRE 802. These exhibits are inadmissible hearsay being offered for the
`
`truth of the matter asserted therein.
`
`25. Exhibits 2129-2151
`FRE 402. These exhibits are irrelevant to showing conception or diligent
`
`reduction to practice because they fail to show conception or diligence concerning
`
`the subject matter claimed in claims 1 through 9 of the ’026 patent. Furthermore,
`
`the portions of these exhibits purporting to show activities that are not attributable
`
`to Mr. Perez are irrelevant to showing conception, diligence, and reduction to
`
`practice by Mr. Perez.
`
`FRE 802. These exhibits are inadmissible hearsay being offered for the
`
`truth of the matter asserted therein.
`
`26. Exhibits 2154-2166
`FRE 402. These exhibits are irrelevant to showing conception or diligent
`
`reduction to practice because they fail to show conception or diligence concerning
`
`the subject matter claimed in claims 1 through 9 of the ’026 patent. Furthermore,
`
`the portions of these exhibits purporting to show activities that are not attributable
`
`to Mr. Perez are irrelevant to showing conception, diligence, and reduction to
`
`practice by Mr. Perez.
`
`-31-
`
`
`
`FRE 802. These exhibits are inadmissible hearsay being offered for the
`
`truth of the matter asserted therein.
`
`27. Exhibit 2167
`FRE 402. This exhibit is irrelevant for the purpose it is offered, as the
`
`capabilities of the discussed device are not relevant to whether Kelts discloses the
`
`limitations of the challenged claims. Moreover, the alleged shortcomings of this
`
`device are not relevant as BBiTV has taken the position that video receipt and
`
`display are not requirements of the challenged
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