Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
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`
`UNITED STATES PATENT AND TRADEMARK OFFICE
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`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
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`
`
`SAMSUNG ELECTRONICS CO. LTD.,
`SAMSUNG ELECTRONICS AMERICA, INC., AND
`APPLE INC.
`
`Petitioners,
`
`v.
`
`NEONODE SMARTPHONE LLC
`
`Patent Owner.
`
`
`
`
`
`
`
`
`
`
`
`Case IPR2021-00144
`Patent No. 8,095,879
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`
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`
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`PETITIONERS’ OBJECTIONS TO EVIDENCE
`UNDER 37 C.F.R. § 42.64
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`
`
`
`
`
`
`IPR2021-00144 (U.S. Patent No. 8,095,879)
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`SAMSUNG ELECTRONICS CO. LTD.,
`SAMSUNG ELECTRONICS AMERICA, INC., AND
`APPLE INC.
`
`Petitioners,
`
`v.
`
`NEONODE SMARTPHONE LLC
`
`Patent Owner.
`
`
`
`
`
`
`
`
`
`
`
`Case IPR2021-00144
`Patent No. 8,095,879
`
`
`
`
`
`
`
`
`PETITIONERS’ OBJECTIONS TO EVIDENCE
`UNDER 37 C.F.R. § 42.64
`
`
`
`
`
`
`
`
`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
`
`
`Samsung Electronics Co. Ltd. and Samsung Electronics America, Inc.
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`(“Samsung-Petitioners”) and Apple Inc. (“Apple-Petitioner”) (collectively,
`
`“Petitioners”), object under the Federal Rules of Evidence and 37 C.F.R. §
`
`42.64(b)(1) to the admissibility of Exhibits 2005 through 2042 submitted by
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`Neonode Smartphone LLC (“Patent Owner”) on March 25, 2022.
`
`The Board Granted Institution of Inter Partes Review on December 3, 2021.
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`Paper No. 26. These objections come within five business days of service of the
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`evidence to which the objection is directed. Thus, Petitioners’ objections are
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`timely under 37 C.F.R. § 42.64(b)(1). Petitioners serve Patent Owner with these
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`objections to provide notice that Petitioners will move to exclude these exhibits as
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`improper evidence. Where the underlying objections relate to Confidential
`
`Exhibits, those objects are made only on behalf of Samsung-Petitioners.
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`I.
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`EXHIBIT 2007 – ROSENBERG SECOND DECLARATION
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`Petitioners object to the admissibility of Exhibit 2007 for at least the
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`following reasons:
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`1.
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`Petitioners object to Exhibit 2007 because the statements contained
`
`within are based on other otherwise objectionable exhibits for which Patent
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`Owner has not authenticated or established that the proffered evidence meets
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`the requirements of FRE 901.
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`1
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
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`Petitioners object to Exhibit 2007 because the statements contained
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`2.
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`within are based on other otherwise objectionable exhibits that constitute
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`inadmissible hearsay under FRE 801 and does not fall within a hearsay
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`exception under FRE 802 or FRE 803.
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`3.
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`Petitioners object to Exhibit 2007 as inadmissible under FRE 403
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`because the statements within confuse the issues and mislead the fact-finder.
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`The declarant relies on other otherwise objectionable evidence including
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`statements by another declarant who is not testifying as an expert and does
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`not limit their opinion to one that is rationally based on the witness’s
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`perception, helpful to clearly understand the witness’ testimony or determine
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`a fact in issue, and is not based on scientific, technical, or other specialized
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`knowledge within the scope of FRE 702. Exhibit 2005 relies on statements
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`offered by other declarants that merely state a legal conclusion in a way that
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`says nothing about the facts and are therefore objectionable under FRE 704.
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`4.
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`For example, Dr. Rosenberg’s Declaration relies on the otherwise
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`inadmissible evidence in numerous places, including Ex. 2008 (¶¶ 39, 41,
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`52); Ex. 2012 (¶ 43); Ex. 2013 (¶ 46); Ex. 2014 (¶ 44); Ex. 2015 (¶ 44); Ex.
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`2016 (¶ 44); Ex. 2017 (¶ 44); Ex. 2018 (¶ 47); Ex. 2020 (¶ 47); Ex. 2021 (¶
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`44); Ex. 2022 (¶¶ 38, 48); Ex. 2023 (¶ 40); Ex. 2024 (¶¶ 45, 48); Ex. 2025 (¶
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`48); Ex. 2026 (¶¶ 45, 48); Ex. 2028 (¶ 48).
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`
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`2
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`II. EXHIBIT 2008 – NEONODE N2 INSTRUCTIONS FILM
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
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`Petitioners object to the admissibility of Exhibit 2008 for at least the
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`following reasons:
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`1.
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`Petitioners object to Exhibit 2008 because the video and the
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`information it contains has not been authenticated and Patent Owner has not
`
`established that the proffered evidence meets the requirements of FRE 901.
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`For example, the video bears no date. Patent Owner has not offered
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`testimony of one with personal knowledge of the creation of the video, its
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`source, or its availability.
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`2.
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`Petitioners object to Exhibit 2008 because it contains hearsay under
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`FRE 801 and does not fall within a hearsay exception under FRE 802 or
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`FRE 803.
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`3.
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`Petitioners object to Exhibit 2008 as inadmissible under FRE 402
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`because the document lacks any tendency to make a fact more or less
`
`probable than it would be without the evidence, or any alleged fact is not of
`
`consequence in determining the proceeding. For example, Patent Owner has
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`not established any nexus between the device they contend is the subject of
`
`the video and any challenged claim.
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`
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`3
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`III. EXHIBITS 2012 AND 2013 – PEN COMPUTING MAGAZINE
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
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`Petitioners object to the admissibility of Exhibits 2012 and 2013 for at least
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`the following reasons:
`
`1.
`
`Petitioners object to Exhibits 2012 and 2013 because the documents
`
`have not been authenticated and Patent Owner has not established that the
`
`proffered evidence meets the requirements of FRE 901. The Patent Owner
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`has not provided sufficient evidence to show that the document and the
`
`information it contains is what the Patent Owner claims it is, namely that the
`
`proffered information is truthful and accurate and would have been the same
`
`at the purported time.
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`2.
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`Petitioners object to Exhibits 2012 and 2013 because the documents
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`contain hearsay under FRE 801 and do not fall within a hearsay exception
`
`under FRE 802 or FRE 803. For example, the Exhibits purport to describe
`
`the operation of the device, the history and actions of the company, and the
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`state of the market.
`
`3.
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`Petitioners object to Exhibits 2012 and 2013 as inadmissible under
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`FRE 402 because the documents lack any tendency to make a fact more or
`
`less probable than it would be without the evidence, or any alleged fact is
`
`not of consequence in determining the proceeding. For example, Patent
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`4
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
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`Owner has not established any nexus between the device they contend is the
`
`subject of the documents and any challenged claim.
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`IV. EXHIBIT 2036 – “USER VIDEO
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`Petitioners object to the admissibility of Exhibit 2036 for at least the
`
`following reasons:
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`1.
`
`Petitioners object to Exhibit 2036 because the document has not been
`
`authenticated and Patent Owner has not established that the proffered
`
`evidence meets the requirements of FRE 901. The Patent Owner has not
`
`provided sufficient evidence to show that the document and the information
`
`it contains is what the Patent Owner claims it is, namely that the proffered
`
`information is truthful and accurate and would have been the same at the
`
`purported time. Patent Owner has also offered no evidence that the device
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`depicted or referred to in the video is the same device purportedly offered to
`
`the public.
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`2.
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`Petitioners object to Exhibit 2036 because the document contains
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`hearsay under FRE 801 and does not fall within a hearsay exception under
`
`FRE 802 or FRE 803. For example, the Exhibits purport to describe the
`
`operation of the device, the history and actions of the company, and the state
`
`of the market.
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`5
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
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`Petitioners object to Exhibit 2036 as inadmissible under FRE 403
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`3.
`
`because the document is not probative of any fact issues, is irrelevant for
`
`establishing the disputed facts, and the statements within will confuse the
`
`issues and mislead the fact finder. For example, Exhibit 2036 appears to be
`
`unsupported allegations with regard to “copycat” of a Neonode device, but
`
`lacks any supporting documentation or authenticating support. Patent
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`Owner’s citation to Exhibit 2036 is not in support of any specific factual or
`
`legal issue and appears to instead be an attempt to improperly allege
`
`infringement, which is not an issue in this proceeding.
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`4.
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`Petitioners object to Exhibit 2036 as inadmissible under FRE 402
`
`because the document lacks any tendency to make a fact more or less
`
`probable than it would be without the evidence, or any alleged fact is not of
`
`consequence in determining the proceeding. For example, Patent Owner has
`
`not established any nexus between the device they contend is the subject of
`
`the video, and fail to identify any fact of consequence in the proceeding that
`
`the video might be related to.
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`V. EXHIBITS 2014 AND 2015 – TREND HUNTER
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`Petitioners object to the admissibility of Exhibits 2014 and 2015 for at least
`
`the following reasons:
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`
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`6
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
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`Petitioners object to Exhibits 2014 and 2015 because the documents
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`1.
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`have not been authenticated and Patent Owner has not established that the
`
`proffered evidence meets the requirements of FRE 901. The Patent Owner
`
`has not provided sufficient evidence to show that the document and the
`
`information it contains is what the Patent Owner claims it is, namely that the
`
`proffered information is truthful and accurate and would have been the same
`
`at the purported time.
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`2.
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`Petitioners object to Exhibits 2014 and 2015 because the documents
`
`contain hearsay under FRE 801 and does not fall within a hearsay exception
`
`under FRE 802 or FRE 803. For example, the Exhibits contain quotations
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`from unidentified persons and purport to describe the operations and purpose
`
`of the website TrendHunter.com
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`3.
`
`Petitioners object to Exhibits 2014 and 2015 as inadmissible under
`
`FRE 403 because the documents are not probative of any fact issues, is
`
`irrelevant for establishing the disputed facts, and the statements within will
`
`confuse the issues and mislead the fact finder. For example, Exhibit 2015
`
`describes the purpose and function of the website TrendHunter.com, which
`
`has no relation to the present case.
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`4.
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`Petitioners object to Exhibits 2014 and 2015 as inadmissible under
`
`FRE 402 because the documents lack any tendency to make a fact more or
`
`
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`7
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
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`less probable than it would be without the evidence, or any alleged fact is
`
`not of consequence in determining the proceeding. For example, Patent
`
`Owner has not established any nexus between the device they contend is the
`
`subject of the documents and any challenged claim.
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`VI. EXHIBITS 2016 AND 2017 – TNKGRL MEDIA
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`Petitioners object to the admissibility of Exhibits 2016 and 2017 for at least
`
`the following reasons:
`
`1.
`
`Petitioners object to Exhibits 2016 and 2017 because the documents
`
`have not been authenticated and Patent Owner has not established that the
`
`proffered evidence meets the requirements of FRE 901. The Patent Owner
`
`has not provided sufficient evidence to show that the document and the
`
`information it contains is what the Patent Owner claims it is, namely that the
`
`proffered information is truthful and accurate and would have been the same
`
`at the purported time.
`
`2.
`
`Petitioners object to Exhibits 2016 and 2017 because the documents
`
`contain hearsay under FRE 801 and do not fall within a hearsay exception
`
`under FRE 802 or FRE 803. For example, the Exhibits contain quotations
`
`from unidentified persons and purport to describe the operations and purpose
`
`of the company tnkgrl Media.
`
`
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`8
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
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`Petitioners object to Exhibits 2016 and 2017 as inadmissible under
`
`3.
`
`FRE 403 because the documents are not probative of any fact issues, are
`
`irrelevant for establishing the disputed facts, and the statements within will
`
`confuse the issues and mislead the fact finder. For example, Exhibit 2015
`
`describes the purpose and function of the company tnkgrl Media, which has
`
`no relation to the present proceeding.
`
`4.
`
`Petitioners object to Exhibits 2014 and 2015 as inadmissible under
`
`FRE 402 because the documents lack any tendency to make a fact more or
`
`less probable than it would be without the evidence, or any alleged fact is
`
`not of consequence in determining the proceeding. For example, Patent
`
`Owner has not established any nexus between the device they contend is the
`
`subject of the documents and any challenged claim.
`
`VII. EXHIBIT 2018 – PhD Dissertation
`
`Petitioners object to the admissibility of Exhibit 2018 for at least the
`
`following reasons:
`
`1.
`
`Petitioners object to Exhibit 2018 because the document has not been
`
`authenticated and Patent Owner has not established that the proffered
`
`evidence meets the requirements of FRE 901. The Patent Owner has not
`
`provided sufficient evidence to show that the document and the information
`
`it contains is what the Patent Owner claims it is, namely that the proffered
`
`
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`9
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
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`information is truthful and accurate and would have been the same at the
`
`purported time.
`
`2.
`
`Petitioners object to Exhibit 2018 because the document contains
`
`hearsay under FRE 801 and does not fall within a hearsay exception under
`
`FRE 802 or FRE 803. For example, the Exhibit purports to identify various
`
`aspects regarding the Neonode N1 based on the statements of others.
`
`3.
`
`Petitioners object to Exhibit 2018 as inadmissible under FRE 403
`
`because the document is not probative of any fact issues, is irrelevant for
`
`establishing the disputed facts, and the statements within will confuse the
`
`issues and mislead the fact finder. Further, the statements within are
`
`contradicted by other evidence proffered by Patent Owner.
`
`4.
`
`Petitioners object to Exhibit 2018 as inadmissible under FRE 402
`
`because the document lacks any tendency to make a fact more or less
`
`probable than it would be without the evidence, or any alleged fact is not of
`
`consequence in determining the proceeding. For example, Patent Owner has
`
`not established any nexus between the device they contend is the subject of
`
`the documents and any challenged claim.
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`VIII. EXHIBIT 2019 – ARS TECHNICA ARTICLE
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`Petitioners object to the admissibility of Exhibit 2019 for at least the
`
`following reasons:
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`10
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
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`Petitioners object to Exhibit 2019 because the document has not been
`
`1.
`
`authenticated and Patent Owner has not established that the proffered
`
`evidence meets the requirements of FRE 901. The Patent Owner has not
`
`provided sufficient evidence to show that the document and the information
`
`it contains is what the Patent Owner claims it is, namely that the proffered
`
`information is truthful and accurate and would have been the same at the
`
`purported time.
`
`2.
`
`Petitioners object to Exhibit 2019 because the document contains
`
`hearsay under FRE 801 and does not fall within a hearsay exception under
`
`FRE 802 or FRE 803. For example, the Exhibit purports to identify various
`
`aspects regarding the Neonode Nm1.
`
`3.
`
`Petitioners object to Exhibit 2019 as inadmissible under FRE 403
`
`because the document is not probative of any fact issues, is irrelevant for
`
`establishing the disputed facts, and the statements within will confuse the
`
`issues and mislead the fact finder.
`
`4.
`
`Petitioners object to Exhibit 2019 as inadmissible under FRE 402
`
`because the document lacks any tendency to make a fact more or less
`
`probable than it would be without the evidence, or any alleged fact is not of
`
`consequence in determining the proceeding. For example, Patent Owner has
`
`
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`11
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
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`not established any nexus between the device they contend is the subject of
`
`the document and any challenged claim.
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`IX. EXHIBIT 2020 – HOLLATZ DISSERTATION
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`Petitioners object to the admissibility of Exhibit 2020 for at least the
`
`following reasons:
`
`1.
`
`Petitioners object to Exhibit 2020 because the document has not been
`
`authenticated and Patent Owner has not established that the proffered
`
`evidence meets the requirements of FRE 901. The Patent Owner has not
`
`provided sufficient evidence to show that the document and the information
`
`it contains is what the Patent Owner claims it is, namely that the proffered
`
`information is truthful and accurate and would have been the same at the
`
`purported time.
`
`2.
`
`Petitioners object to Exhibit 2020 because the document contains
`
`hearsay under FRE 801 and does not fall within a hearsay exception under
`
`FRE 802 or FRE 803. For example, the Exhibit purports to identify various
`
`aspects regarding the Neonode N1.
`
`3.
`
`Petitioners object to Exhibit 2020 as inadmissible under FRE 403
`
`because the document is not probative of any fact issues, is irrelevant for
`
`establishing the disputed facts, and the statements within will confuse the
`
`issues and mislead the fact finder.
`
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`12
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
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`Petitioners object to Exhibit 2020 as inadmissible under FRE 402
`
`4.
`
`because the document lacks any tendency to make a fact more or less
`
`probable than it would be without the evidence, or any alleged fact is not of
`
`consequence in determining the proceeding. For example, Patent Owner has
`
`not established any nexus between the device they contend is the subject of
`
`the document and any challenged claim.
`
`X. EXHIBIT 2021 – RCRWireless Article
`
`Petitioners object to the admissibility of Exhibit 2021 for at least the
`
`following reasons:
`
`1.
`
`Petitioners object to Exhibit 2021 because the document has not been
`
`authenticated and Patent Owner has not established that the proffered
`
`evidence meets the requirements of FRE 901. The Patent Owner has not
`
`provided sufficient evidence to show that the document and the information
`
`it contains is what the Patent Owner claims it is, namely that the proffered
`
`information is truthful and accurate and would have been the same at the
`
`purported time.
`
`2.
`
`Petitioners object to Exhibit 2021 because the document contains
`
`hearsay under FRE 801 and does not fall within a hearsay exception under
`
`FRE 802 or FRE 803. For example, the Exhibit purports to identify various
`
`aspects regarding the Neonode N1 and N2 and Neonode the company.
`
`
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`13
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
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`Petitioners object to Exhibit 2021 as inadmissible under FRE 403
`
`3.
`
`because the document is not probative of any fact issues, is irrelevant for
`
`establishing the disputed facts, and the statements within will confuse the
`
`issues and mislead the fact finder.
`
`4.
`
`Petitioners object to Exhibit 2021 as inadmissible under FRE 402
`
`because the document lacks any tendency to make a fact more or less
`
`probable than it would be without the evidence, or any alleged fact is not of
`
`consequence in determining the proceeding. For example, Patent Owner has
`
`not established any nexus between the device they contend is the subject of
`
`the document and any challenged claim.
`
`XI. EXHIBIT 2022 – DECLARATION OF ULF MÅRTENSSON
`Petitioners object to the admissibility of the Declaration of Ulf Mårtensson
`
`for at least the following reasons:
`
`1.
`
`Petitioners object to the Mårtensson declaration because it contains
`
`improper lay witness testimony under FRE 701. Mr. Mårtensson does not
`
`have personal knowledge of the documents or the information they purport
`
`to convey. Mr. Mårtensson did not create these documents. Mr. Mårtensson
`
`was not employed with Neonode at the purported time that Exhibit 2027 was
`
`created. Further, between 2006-2008, Mr. Mårtensson was not involved in
`
`the sales department and did not create or help create Exhibit 2025. Lastly,
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`14
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
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`Mr. Mårtensson testifies to sales that he has no knowledge of and that are
`
`unsupported by the documents he seeks to authenticate. Because Mr.
`
`Mårtensson’s testimony is not based on his personal knowledge or
`
`perception of the facts he seeks to assert, his testimony is inadmissible under
`
`FRE 701.
`
`2.
`
`For example, Mr. Mårtensson’s Declaration relies on otherwise
`
`inadmissible evidence in numerous places, including Ex. 2025 (¶¶ 4-6); Ex.
`
`2028 (¶¶ 4-5).
`
`3.
`
`Petitioners object to the Mårtensson declaration because it contains
`
`hearsay under FRE 801 and does not fall within a hearsay exception under
`
`FRE 802 or FRE 803. For example, at ¶ 5 of Exhibit 2022, the declarant
`
`recounts that the documents “were intended to be accurate and reliable” and
`
`were “kept by Neonode in the course of regularly conducted business
`
`activity in soliciting investment in the company, and in marketing,
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`promotion, and sales of Neonode’s products.” Mr. Mårtensson does not have
`
`personal knowledge of the creation or use of these documents. Mr.
`
`Mårtensson is relying on the statements of other unidentified parties for his
`
`conclusions. These statements are inadmissible under FRE 801.
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`15
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
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`For example, Mr. Mårtensson’s Declaration relies on otherwise
`
`4.
`
`inadmissible evidence in numerous places, including Ex. 2025 (¶¶ 4-6); Ex.
`
`2028 (¶¶ 4-5).
`
`5.
`
`Petitioners object to Exhibit 2022 as inadmissible under FRE 403
`
`because the document is likely to confuse the issues and mislead the fact
`
`finder. Mr. Mårtensson does not have personal knowledge of the documents
`
`he is attempting to authenticate. He does not know the identify of the
`
`individuals who created them or why they were created. Mr. Mårtensson’s
`
`statement that the documents “were intended by Neonode to be accurate and
`
`reliable” is contradicted by his testimony regarding the same documents in
`
`other proceedings. Lastly, Mr. Mårtensson testifies regarding sales he has no
`
`personal knowledge of and that are uncorroborated by the documents he
`
`purports to authenticate. Mr. Mårtensson’s statements are unsupported and
`
`inadmissible under FRE 403.
`
`6.
`
`Petitioners object to Exhibit 2022 as inadmissible under FRE 402
`
`because the document lacks any tendency to make a fact more or less
`
`probable than it would be without the evidence, or any alleged fact is not of
`
`consequence in determining the proceeding. For example, Patent Owner has
`
`not established any nexus between the device they contend is the subject of
`
`the declaration and any challenged claim.
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`16
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
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`XII. EXHIBIT 2023 - DECLARATION OF JOSEPH SHAIN
`Petitioners object to the admissibility of the Declaration of Joseph Shain for
`
`at least the following reasons:
`
`1.
`
`Petitioners object to the Shain declaration because it contains
`
`improper expert testimony under FRE 702. Mr. Shain’s testimony merely
`
`repeats the language of the claims.
`
`2.
`
`Petitioners object to the Shain declaration because it contains
`
`improper lay witness testimony under FRE 701. Mr. Shain does not have
`
`personal knowledge of the creation, source, or availability of Exhibit 2008.
`
`Mr. Shain did not work for Neonode at the purported time that the video was
`
`created. Because Mr. Shain’s testimony is not based on his personal
`
`knowledge or perception of the facts he seeks to assert, his testimony is
`
`inadmissible under FRE 701.
`
`3.
`
`For example, Mr. Shain’s Declaration relies on otherwise inadmissible
`
`evidence, including Ex. 2008 (¶ 7).
`
`4.
`
`Petitioners object to the Shain declaration because it contains hearsay
`
`under FRE 801 and does not fall within a hearsay exception under FRE 802
`
`or FRE 803. For example, at least because Mr. Shain was not employed
`
`with Neonode at the alleged time of creation of Exhibit 2008, his
`
`
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`17
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
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`
`understanding of the creation, purpose, and use of the video relies entirely
`
`on the statements of another.
`
`5.
`
`For example, Mr. Shain’s Declaration relies on otherwise inadmissible
`
`evidence, including Ex. 2008 (¶ 7).
`
`6.
`
`Petitioners object to Exhibit 2023 as inadmissible under FRE 402
`
`because the document lacks any tendency to make a fact more or less
`
`probable than it would be without the evidence, or any alleged fact is not of
`
`consequence in determining the proceeding. For example, Patent Owner has
`
`not established any nexus between the device they contend is the subject of
`
`the declaration and any challenged claim.
`
`XIII. EXHIBIT 2024 – DECLARATION OF MARCUS BÄCKLUND
`Petitioners object to the admissibility of the Declaration of Marcus Bäcklund
`
`for at least the following reasons:
`
`1.
`
`Petitioners object to the Bäcklund declaration because it contains
`
`hearsay under FRE 801 and does not fall within a hearsay exception under
`
`FRE 802 or FRE 803. For example, at ¶ 4 of Exhibit 2024, the declarant
`
`recounts what others “told us,” and ¶ 12 recites what representatives “told
`
`us.” Likewise, at ¶ 13 Mr. Bäcklund recounts what Samsung representatives
`
`purportedly said. These statements are inadmissible under FRE 801.
`
`
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`18
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
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`
`Petitioners object to the Bäcklund declaration because it contains
`
`2.
`
`improper expert testimony under FRE 702. For example, at ¶¶ 5 and 8, Mr.
`
`Bäcklund improperly purports to describe the state of the market and the
`
`availability (or lack thereof) of devices with touch screens within the
`
`industry. Similarly, at ¶ 15 Mr. Bäcklund offers additional improper
`
`opinions regarding the state of the market and the reasons for Neonode’s
`
`failure as a company. At ¶ 11, Mr. Bäcklund offers improper expert opinions
`
`that the N1 user interface “was the principal user-facing differentiator of the
`
`N1 from all other mobile handsets then on the market.” Mr. Bäcklund also
`
`testifies regarding the purported novelty of the Neonode products at ¶¶ 4 and
`
`6
`
`3.
`
`Petitioners object to Exhibit 2024 as inadmissible under FRE 403
`
`because the document is likely to confuse the issues and mislead the fact
`
`finder. For example, at ¶¶ 9-10 Mr. Bäcklund testifies to purported pre-
`
`orders and sales that are unsupported and contradicted or undermined by
`
`other evidence, including the testimony of Mr. Mårtensson.
`
`4.
`
`Petitioners object to Exhibit 2024 as inadmissible under FRE 402
`
`because the document lacks any tendency to make a fact more or less
`
`probable than it would be without the evidence, or any alleged fact is not of
`
`consequence in determining the proceeding. For example, Patent Owner has
`
`
`
`19
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
`
`
`not established any nexus between the device they contend is the subject of
`
`the declaration and any challenged claim.
`
`XIV. EXHIBIT 2025 – NEONODE EXCEL SPREADSHEET
`
`Petitioners object to the admissibility of Exhibit 2025 for at least the
`
`following reasons:
`
`1.
`
`Petitioners object to Exhibit 2025 because the document has not been
`
`authenticated and Patent Owner has not established that the proffered
`
`evidence meets the requirements of FRE 901. As explained above, Mr.
`
`Mårtensson cannot authenticate this document. The Patent Owner has not
`
`provided sufficient evidence to show that the document and the information
`
`it contains is what the Patent Owner claims it is, namely that the proffered
`
`information is truthful and accurate and would have been the same at the
`
`purported time.
`
`2.
`
`Petitioners object to Exhibit 2025 because the document contains
`
`hearsay under FRE 801 and does not fall within a hearsay exception under
`
`FRE 802 or FRE 803.
`
`3.
`
`Petitioners object to Exhibit 2025 as inadmissible under FRE 403
`
`because the document is not probative of any fact issues, is irrelevant for
`
`establishing the disputed facts, and the statements within will confuse the
`
`issues and mislead the fact finder. For example, Mr. Mårtensson has already
`
`
`
`20
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
`
`testified that the document indicates items shipped rather than items sold and
`
`could not explain why numerous records have a zero value attached to them.
`
`XV. EXHIBIT 2026 – DECLARATION OF PER BYSTEDT
`
`Samsung-Petitioners object to the admissibility of the Declaration of Per
`
`Bystedt for at least the following reasons:
`
`1.
`
`Samsung-Petitioners object to the Bystedt declaration because the
`
`declarant is not testifying as an expert and does not limit their opinion to one
`
`that is rationally based on the witness’s perception, helpful to clearly
`
`understand the witness’ testimony or determine a fact in issue, and is not
`
`based on scientific, technical, or other specialized knowledge within the
`
`scope of FRE 702. The declarant also offers opinions that merely state a
`
`legal conclusion in a way that says nothing about the facts, and are therefore
`
`objectionable because such opinions are not helpful to the trier of fact. FRE
`
`704.
`
`2.
`
`For example, ¶ 3 of the Bystedt declaration describes the N1 phone’s
`
`design as “innovative” and “novel;” ¶ 5 describes an “original conception”
`
`of a user interface and that “Magnus invented a new technology;” and ¶ 11
`
`concludes the “company enjoyed substantial commercial success.” The
`
`identified statements are inadmissible under FRE 702 and FRE 704.
`
`
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`21
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
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`
`Samsung-Petitioners object to the Bystedt declaration because it
`
`3.
`
`contains hearsay under FRE 801 and does not fall within a hearsay
`
`exception under FRE 802 or FRE 803. For example, at ¶ 5 the declarant
`
`begins a statement with “they told me,” and at ¶ 9 the declarant begins
`
`statements with “Ki Tai Lee … told us,” and “Mr. Lee told Samsung’s
`
`negotiators.” The identified statements (the contents of which are not
`
`further repeated here due to a confidentiality dispute between the parties) are
`
`inadmissible under FRE 801.
`
`XVI. EXHIBIT 2027 – NEONODE INVESTMENT MEMO
`
`Petitioners object to the admissibility of Exhibit 2027 for at least the
`
`following reasons:
`
`1.
`
`Petitioners object to Exhibit 2027 because the document has not been
`
`authenticated and Patent Owner has not established that the proffered
`
`evidence meets the requirements of FRE 901. As explained above, Mr.
`
`Mårtensson cannot authenticate this document. The Patent Owner has not
`
`provided sufficient evidence to show that the document and the information
`
`it contains is what the Patent Owner claims it is, namely that the proffered
`
`information is truthful and accurate and would have been the same at the
`
`purported time.
`
`
`
`22
`
`
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
`
`
`Petitioners object to Exhibit 2027 because the document contains
`
`2.
`
`hearsay under FRE 801 and does not fall within a hearsay exception under
`
`FRE 802 or FRE 803.
`
`3.
`
`Petitioners object to Exhibit 2027 as inadmissible under FRE 403
`
`because the document is not probative of any fact issues, is irrelevant for
`
`establishing the disputed facts, and the statements within will confuse the
`
`issues and mislead the fact finder.
`
`4.
`
`Petitioners object to Exhibit 2027 as inadmissible under FRE 402
`
`because the document lacks any tendency to make a fact more or less
`
`probable than it would be without the evidence, or any alleged fact is not of
`
`consequence in determining the proceeding. For example, Patent Owner has
`
`not established any nexus between the device they contend is the subject of
`
`the document and any challenged claim.
`
`XVII. EXHIBIT 2028 – NEONODE N1M VIDEO
`
`Petitioners object to the admissibility of Exhibit 2028 for at least the
`
`following reasons:
`
`1.
`
`Petitioners object to Exhibit 2028 because the document has not been
`
`authenticated and Patent Owner has not established that the proffered
`
`evidence meets the requirements of FRE 901. The video does not bear a
`
`date. Patent Owner has offered no evidence that the device depicted in the
`
`
`
`23
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`
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`Petitioners’ Objections to Evidence
`IPR2021-00144 (U.S. Patent No. 8,095,879)
`
`video is the same device purportedly offered to the public. The Patent Owner
`
`has not provided sufficient evidence to show that the document and the
`
`information it contains is what the
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