Samsung-Petitioners’ Objections to Evidence
`IPR2021-00145 (U.S. Patent No. 8,812,993)
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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.
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`Petitioners,
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`v.
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`NEONODE SMARTPHONE LLC
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`Patent Owner.
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`
`
`Case IPR2021-00145
`Patent No. 8,812,993
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`PETITIONER SAMSUNG ELECTRONICS CO. LTD. and SAMSUNG
`ELECTRONICS AMERICA, INC.’S
`OBJECTIONS TO EVIDENCE
`UNDER 37 C.F.R. § 42.64
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`WEST\296241258.1
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`IPR2021-00145 (U.S. Patent No. 8,812,993)
`
`
`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 IPR2021-00145
`Patent No. 8,812,993
`
`
`
`
`
`
`
`
`PETITIONER SAMSUNG ELECTRONICS CO. LTD. and SAMSUNG
`ELECTRONICS AMERICA, INC.’S
`OBJECTIONS TO EVIDENCE
`UNDER 37 C.F.R. § 42.64
`
`
`WEST\296241258.1
`
`
`
`
`
`Samsung-Petitioners’ Objections to Evidence
`IPR2021-00145 (U.S. Patent No. 8,812,993)
`
`
`Samsung Electronics Co. Ltd. and Samsung Electronics America, Inc.
`
`(“Samsung-Petitioners”), object under the Federal Rules of Evidence and 37
`
`C.F.R. § 42.64(b)(1) to the admissibility of the following documents submitted
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`by Neonode Smartphone LLC (“Patent Owner”) with its Patent Owner
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`Response.1 Paper No. 29.
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`Patent Owner’s Reply was filed on September 22, 2021. Paper No. 29.
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`Thus, Samsung-Petitioners’ objections are timely under 37 C.F.R. § 42.64(b)(1).
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`Samsung-Petitioners serve Patent Owner with these objections to provide notice
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`that Samsung-Petitioners will move to exclude these exhibits as improper
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`evidence.
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`I.
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`DECLARATION OF PER BYSTEDT (EXHIBIT 2015)
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`Samsung-Petitioners object to the admissibility of the Declaration of Per
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`Bystedt for at least the following reasons:
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`1. Samsung-Petitioners object to the Bystedt declaration because the
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`declarant is not testifying as an expert and does not limit their opinion to
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`1 These objections are brought at this time by only the Samsung-Petitioners due to
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`a dispute between the parties whether the information at objected-to Exhibits 2015
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`and 2016 are confidential to Samsung and Neonode, and therefore should not be
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`disclosed to Petitioner Apple Inc.
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`WEST\296241258.1
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`Samsung-Petitioners’ Objections to Evidence
`IPR2021-00145 (U.S. Patent No. 8,812,993)
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`one that is rationally based on the witness’s perception, helpful to clearly
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`understand the witness’ testimony or determine a fact in issue, and is not
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`based on scientific, technical, or other specialized knowledge within the
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`scope of FRE 702. The declarant also offers opinions that merely state a
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`legal conclusion in a way that says nothing about the facts, and are
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`therefore objectionable because such opinions are not helpful to the trier
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`of fact. FRE 704.
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`2. For example, ¶ 3 of the Bystedt declaration describes the N1 phone’s
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`design as “novel;” ¶ 5 describes an “original conception” of a user
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`interface and that “Magnus invented a new technology;” and ¶ 11
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`concludes the “company enjoyed substantial commercial success.” The
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`identified statements are inadmissible under FRE 702 and FRE 704.
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`3. Samsung-Petitioners object to the Bystedt declaration because it contains
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`hearsay under FRE 801 and does not fall within a hearsay exception
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`under FRE 802 or FRE 803. For example, at ¶ 5 the declarant begins a
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`statement with “they told me,” and at ¶ 9 the declarant begins statements
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`with “Ki Tai Lee … told us,” and “Mr. Lee told Samsung’s negotiators.”
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`The identified statements (the contents of which are not further repeated
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`here due to a confidentiality dispute between the parties) are inadmissible
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`under FRE 801.
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`WEST\296241258.1
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`Samsung-Petitioners’ Objections to Evidence
`IPR2021-00145 (U.S. Patent No. 8,812,993)
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`II.
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`DECLARATION OF MARCUS BÄCKLUND (EXHIBIT 2016)
`Samsung-Petitioners object to the admissibility of the Declaration of Marcus
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`Bäcklund for at least the following reasons:
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`1. Samsung-Petitioners object to the Bäcklund declaration because it
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`contains 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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`2. For example, at ¶ 4 of Exhibit 2016, the declarant recounts what others
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`“told us,” and ¶ 12 recites what representatives “told us.” These
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`statements are inadmissible under FRE 801.
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`III. CONCLUSION
`Therefore, Samsung-Petitioners reserve their rights to file motions to
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`exclude this evidence and exhibits under 37 C.F.R. § 42.64(c).
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`Date: September 29, 2021
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`Respectfully submitted,
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`
`/Tiffany C. Miller/
`Tiffany C. Miller, Reg. 52,032
`James M. Heintz, Reg. No. 41,828
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`Attorneys for Samsung-Petitioners
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`WEST\296241258.1
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`3
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`Samsung-Petitioners’ Objections to Evidence
`IPR2021-00145 (U.S. Patent No. 8,812,993)
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`CERTIFICATE OF SERVICE
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`The undersigned certifies, in accordance with 37 D.F.R. § 42.6(e), that service
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`was made on the Patent Owner as detailed below:
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`Date of Service:
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`September 29, 2021
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`Manner of Service:
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`Electronic Mail
`rasher@sunsteinlaw.com,
`bsunstein@sunsteinlaw.com,
`tmurphy@sunsteinlaw.com,
`ahans@sunsteinlaw.com, philipg@hbsslaw.com
`greers@hbsslaw.com, markc@hbsslaw.com,
`sunsteinip@sunsteinlaw.com
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`Documents Served:
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`Samsung-Petitioners’ Objections to Evidence
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`Persons Served:
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`Robert M. Asher, Bruce D. Sunstein, Timothy M.
`Murphy, Arne Hans, Phil J. Graves, Greer N.
`Shaw, Mark S. Carlson
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`
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`
`
`/Tiffany C. Miller/
`Tiffany C. Miller
`Registration No. 52,032
`Attorney for Samsung-Petitioners
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`WEST\296241258.1
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