`
`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
`U.S. Patent No. 10,028,026 B2
`___________________
`
`
`PATENT OWNER’S OBJECTIONS TO PETITIONER’S REPLY
`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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`
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`(“BBiTV”) hereby objects under the Federal Rules of Evidence (“FRE”) to the
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`admissibility of Exhibits 1053-1068, filed with Petitioner’s Reply (Paper 45) on
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`August 18, 2021.
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`BBiTV timely objects under 37 C.F.R. § 42.64(b)(1) within five business
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`days of service of evidence to which the objection is directed. BBiTV files and
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`serves Petitioner DISH Network, L.L.C. (“DISH”) with these objections to provide
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`notice that BBiTV may move to exclude Exhibits 1053-1068, or portions thereof,
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`under 37 C.F.R. § 42.64(c).
`
`I.
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`EXHIBITS 1056, 1057, 1059, 1066, AND 1067
`FRE 401, 402, and 403: BBiTV objects to Exhibits 1056, 1057, 1059, 1066,
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`and 1067 for including information that is irrelevant or whose probative value to
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`any ground upon which trial was instituted is substantially outweighed by the
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`danger of unfair prejudice, confusing the issues, undue delay, wasting time, or
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`needlessly presenting cumulative evidence.
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`FRE 901 and 902: BBiTV objects to Exhibits 1056, 1057, 1059, 1066, and
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`1067 as not properly authenticated under FRE 901 because DISH has not presented
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`evidence sufficient to support a finding that the documents in question are what
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`DISH claims. There is no evidence that these documents are self-authenticating
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`under FRE 902.
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`- 1 -
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
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`II. EXHIBITS 1058 AND 1064
`FRE 401, 402, and 403: BBiTV objects to Exhibits 1058 and 1064 for
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`including information that is irrelevant or whose probative value to any ground
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`upon which trial was instituted is substantially outweighed by the danger of unfair
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`prejudice, confusing the issues, undue delay, wasting time, or needlessly
`
`presenting cumulative evidence.
`
`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 1058 and
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`1064 as inadmissible hearsay under FRE 801 and 802 that does not fall under any
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`exception.
`
`FRE 901 and 902: BBiTV objects to Exhibits 1058 and 1064 as not properly
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`authenticated under FRE 901 because DISH has not presented evidence sufficient
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`to support a finding that the documents in question are what DISH claims. There is
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`no evidence that these documents are self-authenticating under FRE 902.
`
`III. EXHIBITS 1060 AND 1061
`BBiTV objects to Exhibits 1060 and 1061, including Exhibits A and B, for
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`including information that is irrelevant or whose probative value to any ground
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`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 701: To the extent DISH relies on the contents of this document,
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`BBiTV objects to Exhibit 1061 as inadmissible for being improper opinion
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`testimony by a lay witness.
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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 1060 and
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`1061, including Exhibits A and B, as inadmissible hearsay under FRE 801 and 802
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`that does not fall under any exception.
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`FRE 901 and 902: BBiTV objects to Exhibits 1060 and 1061, including
`
`Exhibits A and B, as not properly authenticated under FRE 901 because DISH has
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`not presented evidence sufficient to support a finding that the documents in
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`question are what DISH claims. There is no evidence that the documents are self-
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`authenticating under FRE 902.
`
`IV. EXHIBIT 1062
`FRE 401, 402, and 403: BBiTV objects to Exhibit 1062, including Exhibit
`
`A, for including 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. Exhibit 1062 is not cited or relied upon in
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`Petitioner’s Reply.
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`- 3 -
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`FRE 602: BBiTV objects to paragraph 6 of Exhibit 1062 because the
`
`declarant lacks personal knowledge.
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`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 1062,
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`including Exhibit A, as inadmissible hearsay under FRE 801 and 802 that does not
`
`fall under any exception.
`
`FRE 901 and 902: BBiTV objects to Exhibit 1062, including Exhibit A, as
`
`not properly 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 no evidence that the document is self-authenticating under
`
`FRE 902.
`
`V. EXHIBIT 1063
`FRE 401, 402, and 403: BBiTV objects to Exhibit 1063 for including
`
`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. Exhibit 1063 is not cited or relied upon in Petitioner’s Reply.
`
`FRE 602: BBiTV objects to paragraph 6 of Exhibit 1063 because the
`
`declarant lacks personal knowledge.
`
`
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`- 4 -
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`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 1063 as
`
`inadmissible hearsay under FRE 801 and 802 that does not fall under any
`
`exception.
`
`FRE 901 and 902: BBiTV objects to Exhibit 1063 as not properly
`
`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
`
`no evidence that the document is self-authenticating under FRE 902.
`
`BBiTV further objects to Exhibit 1063 as an improper affidavit under 37
`
`C.F.R. § 42.63 and 35 U.S.C. § 1.68 for failing to acknowledge that willful false
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`statements and the like are punishable by fine or imprisonment, or both.
`
`VI. EXHIBIT 1065
`FRE 401, 402, and 403: BBiTV objects to Exhibit 1065, including
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`Appendices A-F, for including information that is irrelevant or whose probative
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`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. Exhibit 1065 is not cited or relied upon
`
`in Petitioner’s Reply.
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`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 1065,
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`
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`- 5 -
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`including Appendices A-F, as inadmissible hearsay under FRE 801 and 802 that
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`does not fall under any exception.
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`FRE 901 and 902: BBiTV objects to Appendices A-F of Exhibit 1065 as not
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`properly authenticated under FRE 901 because DISH has not presented evidence
`
`sufficient to support a finding that the appendices in question are what DISH
`
`claims. There is no evidence that the appendices are self-authenticating under FRE
`
`902.
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`FRE 702 and 703: BBiTV objects to Exhibit 1065 because there has not
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`been an adequate showing that Dr. Hsieh-Yee’s testimony is based on sufficient
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`facts or data, is the product of reliable principles or methods, or that the testimony
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`will help the Board understand the evidence or determine a fact in issue. BBiTV
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`further objects to this document to the extent it relies on Exhibits 1063, 1064, and
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`1066, and Appendices A-F, because they are inadmissible under FRE 401, 402,
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`403, 801, 802, 901, and/or 902, as discussed above, and/or are inadmissible as not
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`qualified to be the basis for an expert opinion under FRE 703. Therefore, these
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`portions of Exhibit 1065 are inadmissible under FRE 702 and 703.
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`VII. EXHIBITS 1054, 1055, AND 1068
`BBiTV objects to Exhibits 1054, 1055, and 1068 in accordance with 37
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`C.F.R. § 42.14 as being improperly filed under seal without a motion to seal
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`concurrently filed with these exhibits.
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`- 6 -
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`
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
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`VIII. EXHIBIT 1053
`BBiTV objects to Exhibit 1053 to the extent it relies on Exhibits 1054-1068
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`for the same reasons as provided above.
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`BBiTV further objects to Exhibit 1053 in accordance with 37 C.F.R. § 42.14
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`as being improperly filed under seal without a motion to seal concurrently filed
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`with this exhibit.
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/Michael D. Specht/
`
`Michael D. Specht
`Registration No. 54,463
`Counsel for Patent Owner
`
`Date: August 25, 2021
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
`
`
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`- 7 -
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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 August 25, 2021, upon the following counsel of record
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`for Petitioner:
`
`Alyssa Caridis (Lead Counsel)
`K. Patrick Herman (Back-up Counsel)
`Clement Roberts (Back-up Counsel)
`Will Melehani (Back-up Counsel)
`ORRICK, HERRINGTON, & SUTCLIFFE, LLP
`A8CPTABDocket@orrick.com
`P52PTABDocket@orrick.com
`croberts@orrick.com
`wmelehani@orrick.com
`
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/Michael D. Specht/
`
`Michael D. Specht
`Registration No. 54,463
`Counsel for Patent Owner
`
`Date: August 25, 2021
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
`
`
`
`
`17235857_1.docx
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