`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________________________
`
`BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT &
`BMW OF NORTH AMERICA, LLC
`Petitioners
`
`v.
`
`PAICE LLC & THE ABELL FOUNDATION, INC.
`Patent Owners
`
`____________________
`
`IPR2020-01386
`U.S. Patent No. 7,237,634
`____________________
`
`
`PETITIONERS’ OBJECTIONS UNDER 37 C.F.R. § 42.64
`TO EVIDENCE SUBMITTED WITH PATENT OWNERS’ RESPONSE
`
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`
`
`Petitioners’ Objections to Patent Owners’ Evidence
`Case IPR2020-01386
`U.S. Patent No. 7,237,634
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioners Bayerische Motoren Werke
`
`Aktiengesellschaft & BMW of North America, LLC object to the following
`
`exhibits filed with the Patent Owners’ Response as follows:1
`
`Exhibit
`
`2016
`
`Objections
`
`Petitioners object to this exhibit to the extent it relies on or
`incorporates inadmissible exhibits to which the Petitioners
`object herein.
`Fed. R. Evid. 402/602/702/703. Dr. Shahbakhti, the witness
`offering declaration testimony (a) lacks the knowledge, skill,
`experience, training, or education to testify as an expert in a
`manner that is helpful to the Board; (b) provides opinions that
`are not based on sufficient facts or data, or ones that he has been
`made aware of or personally observed; (c) has not applied
`reliable principles and methods; and (d) has not reliably applied
`such principles and methods to the facts of the case. (See, e.g.,
`¶¶ 60, 62 (opining regarding source code); Ex. 2017.)
`37 C.F.R. § 42.65(a): Dr. Shahbakhti fails to identify with
`particularity the underlying facts or data on which his opinions
`are based. (See, e.g., ¶¶ 44-47, 52, 133, 159-166, 169, 60, 65-67,
`70-74, 79-84, 88, 102-103, 111-117, 121-25.)
`Fed. R. Evid. 402. This exhibit includes statements, or relies on
`evidence, not relevant to any ground upon which the trial was
`instituted. (See, e.g., ¶¶ 45, 140.)
`Fed. R. Evid. 901. Dr. Shahbakhti does not properly
`authenticate or identify, and has not established the publication
`date, of certain evidence upon which he relies. (See, e.g., ¶¶ 44,
`
`
`1 Petitioners’ objections apply equally to Patent Owners’ reliance on these exhibits,
`
`including in any documents filed in this proceeding.
`
`1
`
`
`
`2018
`
`2019
`
`2020
`
`2022
`
`Petitioners’ Objections to Patent Owners’ Evidence
`Case IPR2020-01386
`U.S. Patent No. 7,237,634
`
`
`119, 130, 131, 185, 195.)
`
`Fed. R. Evid. 402. This exhibit is not relevant to any ground
`upon which this trial was instituted. For example, the copyright
`date listed on the document is significantly after the September
`14, 1998 priority date of the ’634 Patent, which is the date that
`Dr. Shahbakhti states that he is using for gauging the skill of the
`art. (See, e.g., Ex. 2016, ¶29).
`Fed. R. Evid. 901. Patent Owners have not properly
`authenticated or identified this document, and have not
`established the publication date.
`Fed. R. Evid. 106. This document is incomplete and includes
`only a select portion of a larger document.
`
`Fed. R. Evid. 106. This document is incomplete and includes
`only a select portion of a larger document.
`
`Fed. R. Evid. 402. This exhibit is not relevant to any ground
`upon which this trial was instituted. For example, the copyright
`date listed on the document is significantly after the September
`14, 1998 priority date of the ’634 Patent, which is the date that
`Dr. Shahbakhti states that he is using for gauging the skill of the
`art. (See, e.g., Ex. 2016, ¶29).
`Fed. R. Evid. 901. Patent Owners have not properly
`authenticated or identified this document, and have not
`established the publication date.
`Fed. R. Evid. 106. This document is incomplete and includes
`only a select portion of a larger document.
`
`Fed. R. Evid. 402. This exhibit is not relevant to any ground
`upon which this trial was instituted. For example, the
`publication date listed on the document is significantly after the
`September 14, 1998 priority date of the ’634 Patent, which is the
`date that Dr. Shahbakhti states that he is using for gauging the
`skill of the art. (See, e.g., Ex. 2016, ¶29).
`
`2
`
`
`
`Petitioners’ Objections to Patent Owners’ Evidence
`Case IPR2020-01386
`U.S. Patent No. 7,237,634
`
`
`Fed. R. Evid. 901. Patent Owners have not properly
`authenticated or identified this document, and have not
`established the publication date.
`Fed. R. Evid. 106. This document is incomplete and includes
`only a select portion of a larger document.
`
`Fed. R. Evid. 402. This exhibit is not relevant to any ground
`upon which this trial was instituted. For example, the copyright
`date listed on the document is significantly after the September
`14, 1998 priority date of the ’634 Patent, which is the date that
`Dr. Shahbakhti states that he is using for gauging the skill of the
`art. (See, e.g., Ex. 2016, ¶29).
`Fed. R. Evid. 901. Patent Owners have not properly
`authenticated or identified this document, and have not
`established the publication date.
`Fed. R. Evid. 106. This document is incomplete and includes
`only a select portion of a larger document.
`
`Fed. R. Evid. 402. This exhibit is not relevant to any ground
`upon which this trial was instituted. For example, the copyright
`date listed on the document is significantly after the September
`14, 1998 priority date of the ’634 Patent, which is the date that
`Dr. Shahbakhti states that he is using for gauging the skill of the
`art. (See, e.g., Ex. 2016, ¶29).
`Fed. R. Evid. 901. Patent Owners have not properly
`authenticated or identified this document, and have not
`established the publication date.
`Fed. R. Evid. 106. This document is incomplete and includes
`only a select portion of a larger document.
`
`Fed. R. Evid. 402. This exhibit is not relevant to any ground
`upon which this trial was instituted. For example, the copyright
`date listed on the document is significantly after the September
`14, 1998 priority date of the ’634 Patent, which is the date that
`Dr. Shahbakhti states that he is using for gauging the skill of the
`
`3
`
`2023
`
`2024
`
`2028
`
`
`
`2033
`
`
`
`
`
`
`
`Petitioners’ Objections to Patent Owners’ Evidence
`Case IPR2020-01386
`U.S. Patent No. 7,237,634
`
`
`art. (See, e.g., Ex. 2016, ¶29).
`Fed. R. Evid. 901. Patent Owners have not properly
`authenticated or identified this document, and have not
`established the publication date.
`Fed. R. Evid. 106. This document is incomplete and includes
`only a select portion of a larger document.
`
`Fed. R. Evid. 402. This exhibit is not relevant to any ground
`upon which this trial was instituted. For example, the document
`references country populations as of the year 2007 (Ex. 2033 at
`6) which is significantly after the September 14, 1998 priority
`date of the ’634 Patent, which is the date that Dr. Shahbakhti
`states that he is using for gauging the skill of the art. (See, e.g.,
`Ex. 2016, ¶29).
`Fed. R. Evid. 901. Patent Owners have not properly
`authenticated or identified this document, and have not
`established the publication date.
`Fed. R. Evid. 106. This document is incomplete and includes
`only a select portion of a larger document.
`
`
`
`4
`
`
`
`Petitioners’ Objections to Patent Owners’ Evidence
`Case IPR2020-01386
`U.S. Patent No. 7,237,634
`
`
`Dated: May 10, 2021
`
`
`
` Respectfully submitted,
`
`
`
`
`
`
`
`
`/Jeffrey D. Sanok/
`Jeffrey D. Sanok (Reg. No. 32,169)
`Vincent J. Galluzzo (Reg. No. 67,830)
`Crowell & Moring LLP
`1001 Pennsylvania Avenue NW
`Washington, DC 20004-2595
`Tel.: (202) 624-2500
`Fax: (202) 628-8844
`jsanok@crowell.com
`vgalluzzo@crowell.com
`
`Scott L. Bittman (Reg. No. 55,007)
`Jacob Z. Zambrzycki (pro hac vice)
`Crowell & Moring LLP
`590 Madison Ave., 20th Floor
`New York, NY 10022-2544
`Tel.: (212) 223-4000
`Fax: (212) 223-4134
`sbittman@crowell.com
`jzambrzycki@crowell.com
`
`Counsel for Petitioners Bayerische
`Motoren Werke Aktiengesellschaft
`and BMW of North America, LLC
`
`5
`
`
`
`Petitioners’ Objections to Patent Owners’ Evidence
`Case IPR2020-01386
`U.S. Patent No. 7,237,634
`
`
`Certificate of Service
`
`Pursuant
`
`to 37 C.F.R. § 42.6(e)(4), I certify
`
`that
`
`the foregoing
`
`PETITIONERS’ OBJECTIONS UNDER § 42.64 TO EVIDENCE SUBMITTED
`
`WITH PATENT OWNERS’ RESPONSE was served electronically by filing this
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`document through the PTAB E2E system, as well as by e-mailing copies to the
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`following address for counsel of record for Patent Owners:
`
`Ruffin B. Cordell
`Brian J. Livedalen
`Timothy W. Riffe
`FISH & RICHARDSON P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`IPR36351-0018IP1@fr.com
`mailto:PTABInbound@fr.com
`
`
`
`
`Dated: May 10, 2021
`
`
`
`
`
`
`
`/Jeffrey D. Sanok/
`Jeffrey D. Sanok
`
`
`
`
`
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