Inter Partes Review of US 9,816,046
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
`
`RIMFROST AS
`Petitioner
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`v.
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`AKER BIOMARINE ANTARCTIC AS
`Patent Owner
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`
`CASE IPR: IPR2020-01533
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`U.S. Patent No. 9,816,046 B2
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`PATENT OWNER’S OPPOSITION TO PETITIONER’S MOTION
`TO EXCLUDE
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`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`i
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`RIMFROST AS
`Petitioner
`
`v.
`
`AKER BIOMARINE ANTARCTIC AS
`Patent Owner
`
`
`CASE IPR: IPR2020-01533
`
`U.S. Patent No. 9,816,046 B2
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`
`
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`
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`PATENT OWNER’S OPPOSITION TO PETITIONER’S MOTION
`TO EXCLUDE
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`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`i
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`Inter Partes Review of US 9,816,046
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES ................................................................................ iii
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`I.
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`INTRODUCTION ......................................................................................... 1
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`II. THE EXHIBITS ARE ADMISSIBLE ......................................................... 2
`Petitioner Failed to Object to the Exhibits with Sufficient
`A.
`Particularity ........................................................................................... 2
`The Exhibits are Properly Authenticated .............................................. 3
`B.
`III. THE EXHIBITS ARE NOT EXCLUDABLE AS HEARSAY .................. 9
`A.
`Petitioner Failed to Identify Any Alleged Hearsay ............................. 10
`B. Metadata is not Hearsay ...................................................................... 10
`C.
`The Exhibits are not Hearsay .............................................................. 11
`D.
`Even if Some Portions of Exhibits are Hearsay, They Fall
`Under the Business Records Exclusion ............................................... 12
`The Residual Hearsay Exception Also Applies .................................. 13
`E.
`IV. CONCLUSION ............................................................................................ 15
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`CERTIFICATE OF SERVICE ............................................................................ 16
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`ii
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`TABLE OF AUTHORITIES
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`Inter Partes Review of US 9,816,046
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`Cases
`Alexander v. CareSource, 576 F.3d 551, (6th Cir.2009) ........................................... 7
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`Apple Inc. v. Achates Reference Publishing, Inc., Case IPR2013-00080, Paper 90,
`(PTAB June 2, 2014) .............................................................................................. 3
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`ATI Tech. ULC v. Iancu, 920 F.3d 1362, (Fed. Cir. 2019) ....................................... 5
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`EMC Corp. v. Personal Web Techs., LLC, Case IPR2013-00085, Paper 73 ......... 12
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`EMC Corp. v. PersonalWeb Technologies, LLC, IPR2013-00084, paper 64 ........ 10
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`Liberty Mutual Ins. v. Progressive Casualty Ins., CBM2012-00002, Paper 66 ...3, 9
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`Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, (D.Md. 2007) ............................. 4
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`Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, (2006) .......................................... 12
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`Motorola Mobility LLC v. Intellectual Ventures II LLC, Case IPR2014-00504,
`Paper 84, ............................................................................................................5, 6
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`Resolution Trust Corp. v. Eason, 17 F.3d 1126, (8th Cir. 1994) ............................... 8
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`Sonos, Inc. v. Implicit, LLC, 2019 WL 4419356 (PTAB Sept. 16, 2019) .............5, 9
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`TRW Automotive U.S. LLC v. Magna Electronics Inc., 2016 WL 212791 (2016) . 15
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`U.S. v. Isgar, 739 F.3d 829, (5th Cir. 2014) .............................................................. 8
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`U.S. v. Khorozian, 333 F.3d 498, (Fed. Cir. 2003) .................................................. 11
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`United States v. Channon, 881 F.3d 806, (10th Cir. 2018) ................................ 6, 10
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`United States v. Lizarraga-Tirado, 789 F.3d 1107, (9th Cir. 2015) ........................ 11
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`iii
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`I.
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`INTRODUCTION
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`Inter Partes Review of US 9,816,046
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`Petitioner’s Motion to Exclude (“Motion;” Paper 25) Exhibits 2003, 2010,
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`and 2013 should be denied both because Petitioner failed to object with sufficient
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`particularity to provide Patent Owner (“PO”) with the opportunity to submit
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`supplemental evidence, and because the Motion fails on the merits.
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`First, Petitioner’s evidentiary objections (Paper 11) violate 37 C.F.R. §
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`42.64(b)(1)’s mandate to “identify the grounds for the objection with sufficient
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`particularity to allow correction in the form of supplemental evidence.” Petitioner
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`presented boilerplate objections to the Exhibits, thus failing to identify the basis of
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`Petitioner’s purported objection with sufficient particularity to enable PO the
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`opportunity to correct or address the objection by submitting supplemental
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`evidence. As such, Petitioner’s complaints regarding the Exhibits are procedurally
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`deficient and were not preserved by Petitioner’s objections. Petitioner’s Motion
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`should be denied for this reason alone. Further, the Motion itself compounds this
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`error by failing to identify any specific portions of the Exhibits that are allegedly
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`hearsay. In fact, Petitioner has failed to identify where in the record the evidence
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`sought to be excluded was relied on by PO. See Consolidated Trial Practice
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`Guide, Nov. 2019, at 79.
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`Second, without deposing any of the witnesses, Petitioner asks the Board to
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`exclude the Exhibits in their entirety. Contrary to Petitioner’s assertions, the
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`Exhibits have been authenticated under mutiple provisions of the Federal Rules of
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`Evidence (“FED. R. EVID”) including FED. R. EVID 901(b)(1), 901(b)(4), 902(7)
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`and 902(11). Further, the Exhibits are not hearsay as they are not being offered to
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`prove the truth of the matter assserted, but rather what they describe as
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`corroboration of Dr. Tilseth’s testimony of conception and reduction to practice.
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`The Exhibits are also not hearsay because they are business records under FED. R.
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`EVID 803(6) and also fall within the provisions of FED. R. EVID 803(7).
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`II. THE EXHIBITS ARE ADMISSIBLE
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`A.
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`Petitioner Failed to Object to the Exhibits with Sufficient Particularity
`Before a party may file a motion to exclude evidence, it must first object to
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`the evidence and “must identify the grounds of the objection with sufficient
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`particularity to allow correction in the form of supplemental evidence.” 37 C.F.R.
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`§ 42.64(b)(1). Petitioner failed to object with the requisite particularity and
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`therefore failed to preserve its objection.
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`Rather, Petitioner’s objections merely list and paraphrase multiple Federal
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`Rules without any specificity to the underlying Exhibits. See, e.g., Paper 11 at 3-4.
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`Despite the lengthy list of non-specific objections, Petitioner’s objections are
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`notably silent with respect to the arguments now presented by Petitioner that the
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`testimony of Dr. Tilseth or the metadata is somehow insufficient to authenticate the
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`2
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`Exhibits and that the Exhibits are not business records under FRE 803(6). See
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`Motion at 3 and 7.
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`By failing to provide specific objections, Petitioner has prevented PO from
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`having a fair opportunity to correct any alleged issues with respect to the Exihibits.
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`See Apple Inc. v. Achates Reference Publishing, Inc., Case IPR2013-00080, Paper
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`90, at 49 (PTAB June 2, 2014) (“Apple would have had the right to serve
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`supplemental evidence for the purpose of correcting any evidentiary deficiencies in
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`the declaration, had Apple been provided with proper and timely notice, as
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`required by 37 C.F.R. § 42.64.”).1 Accordingly, Petitioner’s motion should be
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`denied.
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`B.
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`The Exhibits are Properly Authenticated
`On issues about the admissibility of evidence, the Board favors inclusion.
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`See Liberty Mutual Ins. v. Progressive Casualty Ins., CBM2012-00002, Paper 66
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`at 60-61 (Jan. 23, 2014). “[I]t is better to have a complete record of the evidence
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`submitted by the parties than to exclude particular pieces.” Id. For a document to
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`be admissible, the proponent of the document must show that it is authentic. See
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`1 Petitioner did serve Supplemental Evidence (Exs. 2020-2023; certificate of
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`service provided as Ex. 2025) out of caution but was prejudiced by being kept in
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`the dark as to what Petitioner was specifically objecting to.
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`FED. R. EVID. 901(a); 37 C.F.R. § 42.62; see also Lorraine v. Markel Am. Ins.
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`Co., 241 F.R.D. 534, 541-42 (D.Md. 2007). That is, “the proponent must produce
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`evidence sufficient to support a finding that the item is what the proponent claims
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`it is.” FED. R. EVID. 901(a). “This is not a particularly high barrier to overcome.”
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`Lorraine, 241 F.R.D. at 542.
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`Article IX of the Federal Rules of Evidence provides examples for how to
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`authenticate a document. Rule 901(b) provides a non-exhaustive list of ways an
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`item can be authenticated, including by distinctive characteristics under rule
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`901(b)(4). Furthermore, documents can be self-authenticating by trade inscriptions
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`under Rule 902(7) or as a record of a regularly conducted activity under Rule
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`902(11). Each of the Exhibits is properly authenticated under one or more of these
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`rules. Petitioner has failed to carry its burden of establishing inadmissibility under
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`these rules. See 37 C.F.R. §64(c); 37 C.F.R. §42.20(c).
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`First, the case law and decisions of the Board make it clear that metadata in
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`combination with inventor testimony is sufficient to authenticate documents
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`showing prior conception and reduction to practice. As indicated in Lorraine,
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`evidence may be authenticated by metadata under Rule 901(b)(4). 241 F.R.D. at
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`547. “Because metadata shows the date, time and identity of the creator of an
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`electronic record, as well as all changes made to it, metadata is a distinctive
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`characteristic of all electronic evidence that can be used to authenticate it under
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`Rule 901(b)(4).” Id. at 547-548. This is consistent with recent holdings of the
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`Board. See, e.g., Motorola Mobility LLC v. Intellectual Ventures II LLC, Case
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`IPR2014-00504, Paper 84, at 17-18; Sonos, Inc. v. Implicit, LLC, 2019 WL
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`4419356 (PTAB Sept. 16, 2019)(inventor testimony and metadata sufficient to
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`authenticate documents); see also ATI Tech. ULC v. Iancu, 920 F.3d 1362, 1370–
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`71 (Fed. Cir. 2019) (relying in part on metadata from a revision-control system to
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`corroborate inventor testimony)). In Motorola, the Board specifically found that
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`metadata “is clearly authenticating evidence additional to inventor testimony. . . .”
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`Id. at 18.
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`In the instant case, metadata establishing the dates and times of creation and
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`last modification of Exs. 2003, 2010, and 2013 were provided as Exs. 2004, 2012,
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`and 2014, respectively. See Ex. 2001 ¶¶ 7, 11, 13. As in Motorola, this evidence is
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`sufficient for authentication of the dates of the documents and admission of the
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`documents as evidence. Petitioner cites to several cases for the proposition that
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`“testimony of a witness other than the inventor, who is shown to have understood
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`the recored information, is generally necessary to authenticate the document’s
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`contents . . . .” Motion at 4. This same argument was advanced and rejected by
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`the Board in Motorola in light of the proferred metadata. Motorola, Case
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`IPR2014-00504, Paper 84, at 17.
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`Petitioner has not asserted in the Motion that Exs. 2004, 2012, and 2014 (the
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`Metadata Exhibits) are not authenticated or inadmissble. Petitioner complains in
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`its hearsay argument that “Patent Owner again impermissibly tries to use inventor
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`testimony to authenticate the metadata exhibits: Exhibits 2004 and 2014.” Motion
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`at 11. Petitioner’s argument is backwards and clearly ignores the fact that it is the
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`metadata (a machine statement) that authenticates the underlying document. In
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`this regard, it is well-established precedent that machine statements such as
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`metadata are not testimony by a declarant and thus are not hearsay. See, e.g.,
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`United States v. Channon, 881 F.3d 806, 811 (10th Cir. 2018) (machine-generated
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`transaction records in Excel spreadsheets not hearsay). Thus, in this case, the
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`metadata (which is not hearsay) is an independent verification of the dates of the
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`creation and last modification of Exs. 2003, 2010, and 2013 and serves to
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`authenticate the Exhibits.
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`Petitioner further complains that Dr. Tilseth failed “to testify who took the
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`screenshots of the metadata purportedly associated with” the Exhibits. Motion at
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`11. There are several problems with this argument. First, Dr. Tilseth testified that
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`in each case Exs. 2003, 2010, and 2013 were stored on his computer and that the
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`Metadata Exhibits were screenshots of the metadata for the exhibits. See Ex. 2001
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`¶¶7, 11, 13. The metadata used to authenticate the Exhibits in Motorola was
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`presented in the exact same format. See, Motorola, Case IPR2014-00504, Paper
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`84, at 18 (providing an examination of Ex. 2010, which was a screenshot of the
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`properties information for Ex. 2009). If Petitioner truly believed there was an issue
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`with the Metadata Exhibits, it could have requested the documents in their native
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`format via discovery or deposed Dr. Tilseth. Petitioner did neither. Second, out of
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`an abundance of caution, PO further supplemented this evidence by serving Ex.
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`2023, which explains that the metadata was obtained by accessing the “Properties”
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`or “Info” tabs of the documents provided by Dr. Tilseth and taking screenshots of
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`the displayed metadata.
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`Petitioner further complains about alleged inconsistencies in the metadata.
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`Motion at 11. However, this is mere misdirection because what is important in the
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`metadata are the time-stamped dates of last modification which establishes that the
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`Exhibits submitted as evidence of prior conception and reduction to practice were
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`last modified prior to the critical date of Breivik II (i.e., Nov. 16, 2006).
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`Exs. 2003 and 2013 are also self-authenticated under Rule 902(7) which
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`relates to an “inscription, sign, tag or label purporting to have been affixed in the
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`course of business and indicating origin, ownership, or control.” Both of these
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`exhibits are extensively labelled as being from Fiskeriforskning complete with the
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`Fiskeriforskning letterhead, address, authors, employers, and information about
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`Fiskeriforskning. See, e.g., Ex. 2003 at 0001-2, Ex. 2013 at 0001-2. This is more
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`than sufficient to authenticate the documents under Rule 902(7). See Alexander v.
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`CareSource, 576 F.3d 551, 561 (6th Cir.2009) (document on letterhead “contains a
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`trade inscription indicating the source of origin of the document, and it is self-
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`authenticated under Federal Rule of Evidence 902(7).”)
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`Finally, Exs. 2003 and 2013 are self-authenticated under Rule 902(11).
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`Again, out of an abundance of caution, PO submitted the Oterhals Declaration (Ex.
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`2021) which establishes that Mr. Oterhals was a custodian of the documents at
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`NOFIMA (a successor to Fiskeriforskning) and that the documents were
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`maintained as business records. Petitioner complains that the Oterhals Declaration
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`is boilerplate. Motion at 5. However, in contrast to the district court cases cited by
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`Petitioner, Mr. Oterhal’s Declaration testimony in an Inter Partes Review is live
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`testimony. If Petitioner had any real issue with Mr. Oterhals testimony, it could
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`have deposed him. The fact is that these are simple text (Word or PDF documents)
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`that are routinely stored by virtually every business enterprise, and NOFIMA,
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`which was founded from Fiskeriforskning, is clearly in the businsess of producing
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`analytical reports. Moreover, the precedent is clear that custodian or other
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`qualified person “need not have personal knowledge regarding the creation of the
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`document offered, or personally participate in its creation, or even know who
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`actually recorded the information.” Resolution Trust Corp. v. Eason, 17 F.3d 1126,
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`1132 (8th Cir. 1994). Nor is the custodian or qualified person required to have
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`been an employee of the company. U.S. v. Isgar, 739 F.3d 829, 839 (5th Cir.
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`2014). As it is, given the low bar for authentication, both the Oterhals Declaration
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`and Tilseth Delcaration provide more than enough evidence to establish the
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`exhibits as business records under Rule 902(11).
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`In summary, Exs. 2003, 2010, and 2013 are authenticated under multiple
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`Rules of Evidence.2 Petitioner has failed to present any facts that raise a real issue
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`as to trustworthiness of the evidence (and specifically that the Exhibits are not
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`dated before the critical date or have been otherwise modified) or that warrants the
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`drastic remedy of exclusion. As in Liberty Mutual, the Board should admit the
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`disputed exhibits into evidence. “It is better to have a complete record of the
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`evidence submitted by the parties than to exclude particular pieces.” Liberty
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`Mutual, CBM2012-00002, Paper 66 at 60-61.
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`III. THE EXHIBITS ARE NOT EXCLUDABLE AS HEARSAY
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`Petitioner asserts that even if Exs. 2003 and 2013 are authenticated, they
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`should be excluded as inadmissible hearsay. Motion at 6. Petitioner’s arguments
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`fail for multiple reasons, and as above, Petitioner has failed to carry its burden of
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`establishing inadmissibility. See 37 C.F.R. §64(c); 37 C.F.R. §42.20(c).
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`2 The Exhibits are also authenticated under Rule 901(b)(1) by Dr. Tilseth’s
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`testimony as he is a witness with knowledge. See Sonos, Inc. v. Implicit, LLC,
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`2019 WL 4419356 (PTAB Sept. 16, 2019) at *21.
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`Petitioner Failed to Identify Any Alleged Hearsay
`Petitioner’s argument with respect to hearsay fails to identify any portion of
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`A.
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`Exs. 2003 and 2013 that is an alleged out-of-court statement offered for the truth of
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`the matter asserted. This is fatal to Petitioner’s Motion. The Board rejected a
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`similar challenge in EMC Corp., finding that the proponent of the motion to
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`exclude, like Petitioner here, “fails to identify, specifically, the textual portions of
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`the… exhibits that allegedly are being offered for the truth of the matter asserted,
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`yet seeks to exclude the entirety of each exhibit…” EMC Corp. v. PersonalWeb
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`Technologies, LLC, IPR2013-00084, paper 64 at 51. “The burden should not be
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`placed on the Board to sort through the entirety of each exhibit and determine
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`which portion of the exhibit [proponent] believes to be hearsay. Rather,
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`[proponent] should have identified, in its motion, the specific portions of the
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`evidence and provided sufficient explanations as to why they constitute hearsay.”
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`Id. Petitioner has also failed to identify where in the record the hearsay is
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`allegedly relied on. Petitioner’s Motion with respect to exclusion due to hearsay
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`should be dismissed on this basis alone.
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`B. Metadata is not Hearsay
`As discussed supra at II.B, it is established precedent that machine
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`statements such as metadata are not hearsay. See, e.g., United States v. Channon,
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`881 F.3d 806, 811 (10th Cir. 2018); United States v. Lizarraga-Tirado, 789 F.3d
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`1107, 1110 (9th Cir. 2015) (holding that "[a] tack placed by the Google Earth
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`program and automatically labeled with GPS coordinates isn't hearsay" and joining
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`other circuits in the rule that "machine statements aren't hearsay"); U.S. v.
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`Khorozian, 333 F.3d 498, 506 (Fed. Cir. 2003) (concluding that an automatically
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`generated time stamp on a fax was not a hearsay statement because it was not
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`uttered by a person); see also The Sedona Conference Commentary on ESI
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`Evidence & Admissibility, 9 Sedona Conf. J. 217, 224 (Mar. 2008) ("System
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`metadata does not constitute 'hearsay,' at least not under the Federal Rules of
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`Evidence, because system metadata is generated by a computer without human
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`assistance.").
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`Thus, the Metadata Exhibits (Exs. 2004, 2012 and 2014), which are being
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`offered to establish the underlying exhibits were last modified on a date before the
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`critical date of Breivik II, are not hearsay as they are generated by a computer
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`without human assistance.
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`C.
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`The Exhibits are not Hearsay
`The exhibits associated with the Tilseth Declaration (including Exs. 2003
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`and 2013) are also not hearsay because the exhibits are not being used for the truth
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`of the matter asserted. Rather, the exhibits are being used for what they describe to
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`corroborate the testimony of Dr. Tilseth on the issues of conception and reduction
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`to practice and serve the purpose of supporting the credibility of his testimony so
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`as to prevent fraud. See, e.g., Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1170
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`(2006). That the exhibits are not hearsay is similar to the reason that prior art
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`documents are not hearsay. See EMC Corp. v. Personal Web Techs., LLC, Case
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`IPR2013-00085, Paper 73 at 66 (“a prior art document submitted as a ‘printed
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`publication’ under 35 U.S.C. § 102(b) is offered simply as evidence of what it
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`described, not for proving the truth of the matters addressed in the document.”) In
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`any event, as discussed above, Petitioner has pointed to no statement in the
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`Exhibits that is allegedly hearsay so it is not possible to present an analysis with
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`respect to whether any particular statement in the Exhibits is hearsay.
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`Even if Some Portions of Exhibits are Hearsay, They Fall Under the
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`Business Records Exclusion
`Under Rule 803(6), records of a regularly conducted activity are not hearsay
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`if the record was made at or near the time by – or from information transmitted by
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`– someone with knowledge; the record was kept in the course of regularly
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`conducted activity; making the record was a regular practice of that activity; the
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`conditions are shown by the testimony of the custodian; and the opponent does not
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`show that the source of information or the method of circumstances of preparation
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`indicate a lack of trustworthiness. The testimony of both Mr. Oterhals and Dr.
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`Tilseth, addressed supra at II.B., prima facie establishes that Exs. 2003 and 2013
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`are business records. The Exhibits are simple reports of the type of which are
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`routinely stored in the course of virtually any business. Further, since the Exhibits
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`are being introduced via live testimony, Petitioner could have simply deposed
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`either witness if there were actually any issues with the status of the Exhibits as
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`business records. There is no basis for determining that the Exhibits are not
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`business records under Rule 803(6).
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`E.
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`The Residual Hearsay Exception Also Applies
`Under Rule 807, a hearsay statement is not excluded if: (1) the statement has
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`equivalent circumstantial guarantees of trustworthiness; (2) it is offered as
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`evidence of a material fact; (3) it is more probative on the point for which it is
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`offered than any other evidence that the proponent can obtain through reasonable
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`efforts; and (4) admitting it will best serve the purposes of these rules and the
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`interests of justice.
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`As discussed above, Petitioner has not identified what statements in the
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`Exhibits it considers to hearsay. Nonetheless, in the event that statements from the
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`Exhibits are determined to be offered as evidence of a material fact and are
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`considered by the Board to be hearsay, Rule 807 applies as an exception.
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`The Exhibits as a whole are supported by equivalent circumstantial
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`guarantees of trustworthiness. First, the Metadata Exhibits establish the date on
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`which the Exhibits were last modified, which well before the critical date of
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`Inter Partes Review of US 9,816,046
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`Breivik II. Second, the materials analyzed in the Exhibits (krill meal in Ex. 2003
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`and krill oil extracted from the krill in Ex. 2013) and the dates of the work coincide
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`with the work described in Exs. 2005/2006, 2008, and 2010/2011. The metadata
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`presented for each exhibit consistently establishes that the exhibits existed before
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`the critical date. Third, the krill meal described in Ex. 2003 is the same meal
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`described in Example 1 of Ex. 1005 (the priority document dated March 28, 2007).
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`See, e.g., Ex. 2001, ¶8. The data provided in Table 13 of Ex. 2003 (p. 0023) is
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`repeated in Table 1 of Ex. 1005 (p. 0023). Fourth, data on the extracted krill oil
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`described in Table 3 of Ex. 2013 is also described in Table 8 of the ‘046 Patent
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`(Ex. 1001, p. 0036) and at page 0028 of Ex. 1005 (Table 8, “Lipid class
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`distribution”). See, e.g., Ex. 2001, ¶14. Fifth, Ex. 2013 specifically refers to Ex.
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`2003 (i.e., Report K-300). Ex. 2013 at 0005. All of this supports the
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`trustworthiness of the statements in the Exhibits. In particular, the data in the
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`Exhibits is consistent with the data in the priority provisional patent filed over 15
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`years ago. Clearly, there is no basis for concluding that the Exhibits have
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`somehow been modified or cannot be relied upon.
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`Finally, to the extent that any of the statements in the Exhibits are hearsay
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`and are considered material facts, they are certainly more probative on the points
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`of conception and reduction to practice than any other evidence PO could have
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`obtained through reasonable efforts. The Board has recognized that similar cases
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`Inter Partes Review of US 9,816,046
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`are exceptional when applying the residual exception. See TRW Automotive U.S.
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`LLC v. Magna Electronics Inc., 2016 WL 212791 (2016) at *11-12. Thus, the
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`purposes of the Federal Rules of Evidence and interests of justice are best served
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`by not excluding Exs. 2003 and 2013 from evidence.
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`IV. CONCLUSION
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`Petitioner’s Motion should be denied in its entirety. It is noted that in the
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`conclusion of the Motion, petitioner asserts that certain portions of the Tilseth and
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`Jaczynski Declarations should be excluded. Motion at 13. However, Petitioner has
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`presented no argument or analysis of which portions of the cited paragraphs should
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`be excluded. Moreover, since the Exhibits are properly authenticated, Petitioner’s
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`arguments are moot.
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`Dated: December 28, 2021
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` Respectfully submitted,
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`By /David Casimir/
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`David Casimir, Reg. No. 42,395
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on this 28th day of December, a copy
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`Inter Partes Review of US 9,816,046
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`of the foregoing Patent Owner’s Opposition to Petitioner’s Motion to Exclude
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`and Patent Owner’s Updated Exhibit List were served in their entirety
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`electronically (as consented to by Petitioner) to the attorneys of record as follows:
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`046ipr@hbiplaw.com
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`James F. Harrington
`jfhdocket@hbiplaw.com
`Hoffmann & Baron, LLP
`6900 Jericho Turnpike
`Syosset, NY 11791
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`Michael I. Chakansky
`micdocket@hbiplaw.com
`Hoffmann & Baron, LLP
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`John T. Gallagher
`jtgdocket@hbiplaw.com
`Hoffmann & Baron, LLP
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`By: /David A. Casimir/
`David A. Casimir, Ph.D.
`Registration No. 42,395
`Counsel for Patent Owner
`CASIMIR JONES, S.C.
`2275 Deming Way, Suite 310
`Middleton, Wisconsin 53562
`(608) 662-1277
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`16
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