Case IPR2021-00909
`Patent 8,243,593
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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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`CLOUDFLARE, INC.,
`Petitioner
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`v.
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`SABLE NETWORKS, INC.,
`Patent Owner
`____________
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`Case IPR2021-00909
`Patent 8,243,593
`____________
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`PATENT OWNER’S OBJECTIONS PURSUANT TO 37 C.F.R. § 42.64(b)(1)
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`Patent 8,243,593
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`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CLOUDFLARE, INC.,
`Petitioner
`
`v.
`
`SABLE NETWORKS, INC.,
`Patent Owner
`____________
`
`Case IPR2021-00909
`Patent 8,243,593
`____________
`
`
`PATENT OWNER’S OBJECTIONS PURSUANT TO 37 C.F.R. § 42.64(b)(1)
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`Pursuant to 37 C.F.R. § 42.64(b)(1) and the Federal Rules of Evidence
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`(“FRE”), Patent Owner objects to the following documents submitted by Petitioner
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`Cloudflare, Inc.
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`Nothing in this paper should be construed as an admission that any rights of
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`Patent Owner would have been waived or forfeited had the paper or any objection
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`herein not been filed, or that 37 C.F.R. § 42.64(b) applies to any of the objections
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`herein if § 42.64(b) would not otherwise apply. The objections herein are
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`premised upon § 42.64 potentially being determined to apply to the document in
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`question and are submitted solely to preserve the rights of Patent Owner should
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`§ 42.64(b) be determined to apply.
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`1.
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`Exhibit 1003
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`Under FRE and 37 C.F.R. § 42.65, this document is inadmissible to the
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`extent that it is conclusory and does not disclose bases for the opinions offered
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`therein. Under FRE 401/402/403/702, this document, including for example and
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`without limitation the paragraphs identified earlier in this objection, includes
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`testimony not reliable and not relevant to the instituted review, because, among
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`other things, it has not been shown that the purportedly expert declarant is
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`qualified to testify competently regarding the matters the opinions are said to
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`address, or that the declarant’s testimony is based on sufficient facts or data or
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`arrived at by reliable legal or art principles, procedures, or methods reliably
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`applied to the facts of this case, or that the declarant’s opinion will assist the trier
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`of fact to understand the evidence or to determine any fact in issue and does not
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`have a greater potential to confuse and/or mislead than to enlighten. Under FRE
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`602/701/801/802 and 37 C.F.R. § 42.61, this document includes testimony that is
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`not shown to be based on first-hand knowledge including of how relied-upon data
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`was generated, is based on speculation, and constitutes and contains inadmissible
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`hearsay. Under FRE 401/705 and 37 C.F.R. § 42.65, this document does not
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`disclose underlying facts and data. Under FRE 401/705 and 37 C.F.R. § 42.65,
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`this document includes testimony on patent law and practice.
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`2.
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`Exhibit 1006 – Declaration
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`Under FRE 401/402/403/702, this document or documents include
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`testimony not relevant to the instituted review, because, among other things, it has
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`not been shown that the purportedly expert declarant is qualified to testify
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`competently regarding the matters the opinions are said to address, or that the
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`declarant’s testimony is based on sufficient facts or data or arrived at by reliable
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`principles, procedures, or methods reliably applied to the facts of this case, or that
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`the declarant’s opinion will assist the trier of fact to understand the evidence or to
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`determine any fact in issue and does not have a greater potential to mislead than to
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`enlighten. Under FRE 602/701/801/802 and 37 C.F.R. § 42.61, this document
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`includes testimony that is not shown to be based on first-hand knowledge including
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`of how relied-upon data was generated, is based on speculation, and constitutes
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`and contains inadmissible hearsay.
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`3.
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`Exhibit 1006 – Exhibit A
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`Under FRE 801/802, this document or documents constitute and contain
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`inadmissible hearsay. Under FRE 901, this document or documents are
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`inadmissible because they have not been shown to be authenticated or identified.
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`The document or documents are relied upon as evidence of prior art or of common
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`knowledge or understanding of persons in the art at the priority date at issue, but
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`are inadmissible because they have not been shown to qualify as prior art under,
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`inter alia, 35 U.S.C. § 311(b), and there is a lack of supporting documentation to
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`demonstrate common knowledge or understanding as of the priority date.
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`4.
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`Exhibit 1010
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`Under FRE 801/802, this document constitutes and contains inadmissible
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`hearsay. The document is relied upon as evidence of prior art or of common
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`knowledge or understanding of persons in the art at the priority date at issue, but is
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`inadmissible because it has not been shown to qualify as prior art under, inter alia,
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`35 U.S.C. § 311(b), and there is a lack of supporting documentation to demonstrate
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`common knowledge or understanding as of the priority date. Under FRE
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`401/402/403, this document is inadmissible as irrelevant because, among other
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`things, it does not form a basis of the instituted grounds, and its probative value is
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`outweighed by other considerations including prejudice, confusion and waste of
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`time. Under FRE 401/705 and 37 C.F.R. § 42.65, this document does not disclose
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`underlying facts and data.
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`5.
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`Exhibit 1013
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`Under FRE 801/802, this document constitutes and contains inadmissible
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`hearsay. Under FRE 901, this document is inadmissible because it has not been
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`shown to be authenticated or identified. The document is relied upon as evidence
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`of prior art or of common knowledge or understanding of persons in the art at the
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`priority date at issue, but is inadmissible because it has not been shown to qualify
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`as prior art under, inter alia, 35 U.S.C. § 311(b), and there is a lack of supporting
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`documentation to demonstrate common knowledge or understanding as of the
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`priority date. Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
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`confusion and waste of time. Under FRE 401/705 and 37 C.F.R. § 42.65, this
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`document does not disclose underlying facts and data.
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`6.
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`Exhibit 1016
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`Under FRE 801/802, this document constitutes and contains inadmissible
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`hearsay. Under FRE 901, this document is inadmissible because it has not been
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`shown to be authenticated or identified. The document is relied upon as evidence
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`of prior art or of common knowledge or understanding of persons in the art at the
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`priority date at issue, but is inadmissible because it has not been shown to qualify
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`as prior art under, inter alia, 35 U.S.C. § 311(b), and there is a lack of supporting
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`documentation to demonstrate common knowledge or understanding as of the
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`priority date. Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
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`confusion and waste of time.
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`7.
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`Exhibit 1017
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`Under FRE 801/802, this document constitutes and contains inadmissible
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`hearsay. Under FRE 901, this document is inadmissible because it has not been
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`shown to be authenticated or identified. The document is relied upon as evidence
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`of prior art or of common knowledge or understanding of persons in the art at the
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`priority date at issue, but is inadmissible because it has not been shown to qualify
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`as prior art under, inter alia, 35 U.S.C. § 311(b), and there is a lack of supporting
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`documentation to demonstrate common knowledge or understanding as of the
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`priority date. Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
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`confusion and waste of time.
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`8.
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`Exhibit 1019
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`Under FRE 801/802, this document constitutes and contains inadmissible
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`hearsay. Under FRE 901, this document is inadmissible because it has not been
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`shown to be authenticated or identified. The document is relied upon as evidence
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`of prior art or of common knowledge or understanding of persons in the art at the
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`priority date at issue, but is inadmissible because it has not been shown to qualify
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`as prior art under, inter alia, 35 U.S.C. § 311(b), and there is a lack of supporting
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`documentation to demonstrate common knowledge or understanding as of the
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`priority date. Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
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`confusion and waste of time. Under FRE 106/1001, 35 U.S.C. § 312(a)(3) & (5),
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`and 37 C.F.R. § 42.51(b)(1), this document is incomplete and is not a copy which
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`accurately reproduces the original.
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`9.
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`Exhibit 1019 – Declaration
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`Under FRE 401/402/403/702, this document or documents include
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`testimony not relevant to the instituted review, because, among other things, it has
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`not been shown that the purportedly expert declarant is qualified to testify
`
`competently regarding the matters the opinions are said to address, or that the
`
`declarant’s testimony is based on sufficient facts or data or arrived at by reliable
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`principles, procedures, or methods reliably applied to the facts of this case, or that
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`the declarant’s opinion will assist the trier of fact to understand the evidence or to
`
`determine any fact in issue and does not have a greater potential to mislead than to
`
`enlighten. Under FRE 602/701/801/802 and 37 C.F.R. § 42.61, this document
`
`includes testimony that is not shown to be based on first-hand knowledge including
`
`of how relied-upon data was generated, is based on speculation, and constitutes
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`and contains inadmissible hearsay.
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`10. Exhibit 1022
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`Under FRE 801/802, this document constitutes and contains inadmissible
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`hearsay. Under FRE 901, this document is inadmissible because it has not been
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`shown to be authenticated or identified. The document is relied upon as evidence
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`of prior art or of common knowledge or understanding of persons in the art at the
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`priority date at issue, but is inadmissible because it has not been shown to qualify
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`as prior art under, inter alia, 35 U.S.C. § 311(b), and there is a lack of supporting
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`documentation to demonstrate common knowledge or understanding as of the
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`priority date. Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
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`confusion and waste of time. Under FRE 401/705 and 37 C.F.R. § 42.65, this
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`document does not disclose underlying facts and data.
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`11. Exhibit 1031
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`Under FRE 801/802, this document constitutes and contains inadmissible
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`hearsay. Under FRE 901, this document is inadmissible because it has not been
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`shown to be authenticated or identified. The document is relied upon as evidence
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`of prior art or of common knowledge or understanding of persons in the art at the
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`priority date at issue, but is inadmissible because it has not been shown to qualify
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`as prior art under, inter alia, 35 U.S.C. § 311(b), and there is a lack of supporting
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`documentation to demonstrate common knowledge or understanding as of the
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`priority date. Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
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`confusion and waste of time.
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`12. Exhibit 1032
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`Under FRE 801/802, this document constitutes and contains inadmissible
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`hearsay. Under FRE 901, this document is inadmissible because it has not been
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`shown to be authenticated or identified. The document is relied upon as evidence
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`of prior art or of common knowledge or understanding of persons in the art at the
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`priority date at issue, but is inadmissible because it has not been shown to qualify
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`as prior art under, inter alia, 35 U.S.C. § 311(b), and there is a lack of supporting
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`documentation to demonstrate common knowledge or understanding as of the
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`priority date. Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
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`confusion and waste of time. Under FRE 401/705 and 37 C.F.R. § 42.65, this
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`document does not disclose underlying facts and data.
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`13. Exhibit 1033
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`Under FRE 801/802, this document constitutes and contains inadmissible
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`hearsay. Under FRE 901, this document is inadmissible because it has not been
`
`shown to be authenticated or identified. The document is relied upon as evidence
`
`of prior art or of common knowledge or understanding of persons in the art at the
`
`priority date at issue, but is inadmissible because it has not been shown to qualify
`
`as prior art under, inter alia, 35 U.S.C. § 311(b), and there is a lack of supporting
`
`documentation to demonstrate common knowledge or understanding as of the
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`priority date. Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
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`confusion and waste of time.
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`14. Exhibit 1034
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`Under FRE 801/802, this document constitutes and contains inadmissible
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`hearsay. Under FRE 901, this document is inadmissible because it has not been
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`shown to be authenticated or identified. The document is relied upon as evidence
`
`of prior art or of common knowledge or understanding of persons in the art at the
`
`priority date at issue, but is inadmissible because it has not been shown to qualify
`
`as prior art under, inter alia, 35 U.S.C. § 311(b), and there is a lack of supporting
`
`documentation to demonstrate common knowledge or understanding as of the
`
`priority date. Under FRE 401/402/403, this document is inadmissible as irrelevant
`
`because, among other things, it does not form a basis of the instituted grounds, and
`
`its probative value is outweighed by other considerations including prejudice,
`
`confusion and waste of time. Under FRE 401/705 and 37 C.F.R. § 42.65, this
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`document does not disclose underlying facts and data.
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`15. Exhibit 1038
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`Under FRE 801/802, this document constitutes and contains inadmissible
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`hearsay. Under FRE 901, this document is inadmissible because it has not been
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`shown to be authenticated or identified. The document is relied upon as evidence
`
`of prior art or of common knowledge or understanding of persons in the art at the
`
`priority date at issue, but is inadmissible because it has not been shown to qualify
`
`as prior art under, inter alia, 35 U.S.C. § 311(b), and there is a lack of supporting
`
`documentation to demonstrate common knowledge or understanding as of the
`
`priority date. Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
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`confusion and waste of time. Under FRE 401/705 and 37 C.F.R. § 42.65, this
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`document does not disclose underlying facts and data.
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`16. Exhibit 1040
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`Under FRE 801/802, this document constitutes and contains inadmissible
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`hearsay. Under FRE 901, this document is inadmissible because it has not been
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`shown to be authenticated or identified. The document is relied upon as evidence
`
`of prior art or of common knowledge or understanding of persons in the art at the
`
`priority date at issue, but is inadmissible because it has not been shown to qualify
`
`as prior art under, inter alia, 35 U.S.C. § 311(b), and there is a lack of supporting
`
`documentation to demonstrate common knowledge or understanding as of the
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`priority date. Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
`
`confusion and waste of time. Under FRE 401/705 and 37 C.F.R. § 42.65, this
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`document does not disclose underlying facts and data.
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`17. Exhibit 1041
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`Under FRE 801/802, this document constitutes and contains inadmissible
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`hearsay. Under FRE 901, this document is inadmissible because it has not been
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`shown to be authenticated or identified. The document is relied upon as evidence
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`of prior art or of common knowledge or understanding of persons in the art at the
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`priority date at issue, but is inadmissible because it has not been shown to qualify
`
`as prior art under, inter alia, 35 U.S.C. § 311(b), and there is a lack of supporting
`
`documentation to demonstrate common knowledge or understanding as of the
`
`priority date. Under FRE 401/402/403, this document is inadmissible as irrelevant
`
`because, among other things, it does not form a basis of the instituted grounds, and
`
`its probative value is outweighed by other considerations including prejudice,
`
`confusion and waste of time. Under FRE 401/705 and 37 C.F.R. § 42.65, this
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`document does not disclose underlying facts and data.
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`18. Exhibit 1044
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`Under FRE 801/802, this document constitutes and contains inadmissible
`
`hearsay. Under FRE 901, this document is inadmissible because it has not been
`
`shown to be authenticated or identified. The document is relied upon as evidence
`
`of prior art or of common knowledge or understanding of persons in the art at the
`
`priority date at issue, but is inadmissible because it has not been shown to qualify
`
`as prior art under, inter alia, 35 U.S.C. § 311(b), and there is a lack of supporting
`
`documentation to demonstrate common knowledge or understanding as of the
`
`priority date. Under FRE 401/402/403, this document is inadmissible as irrelevant
`
`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
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`confusion and waste of time. Under FRE 401/705 and 37 C.F.R. § 42.65, this
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`document does not disclose underlying facts and data.
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`19. Exhibit 1047
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`Under FRE 106/1001, 35 U.S.C. § 312(a)(3) & (5), and 37 C.F.R. §
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`42.51(b)(1), this document is incomplete and is not a copy which accurately
`
`reproduces the original. Under FRE 801/802, this document constitutes and
`
`contains inadmissible hearsay. Under FRE 901, this document is inadmissible
`
`because it has not been shown to be authenticated or identified. The document is
`
`relied upon as evidence of prior art or of common knowledge or understanding of
`
`persons in the art at the priority date at issue, but is inadmissible because it has not
`
`been shown to qualify as prior art under, inter alia, 35 U.S.C. § 311(b), and there is
`
`a lack of supporting documentation to demonstrate common knowledge or
`
`understanding as of the priority date. Under FRE 401/402/403, this document is
`
`inadmissible as irrelevant because, among other things, it does not form a basis of
`
`the instituted grounds, and its probative value is outweighed by other
`
`considerations including prejudice, confusion and waste of time. Under FRE
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`401/705 and 37 C.F.R. § 42.65, this document does not disclose underlying facts
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`and data.
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`20. Exhibit 1048
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`Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
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`confusion and waste of time.
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`21. Exhibit 1049
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`Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
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`confusion and waste of time.
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`22. Exhibit 1050
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`Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
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`confusion and waste of time.
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`23. Exhibit 1051
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`Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
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`confusion and waste of time.
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`24. Exhibit 1052
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`Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
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`confusion and waste of time.
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`25. Exhibit 1053
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`Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
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`confusion and waste of time.
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`26. Exhibit 1054
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`Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
`
`confusion and waste of time.
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`27. Exhibit 1055
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`Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
`
`confusion and waste of time.
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`28. Exhibit 1056
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`Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
`
`confusion and waste of time.
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`29. Exhibit 1057
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`Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
`
`confusion and waste of time.
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`30. Exhibit 1058
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`Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
`
`confusion and waste of time.
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`31. Exhibit 1047
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`Under FRE 106/1001, 35 U.S.C. § 312(a)(3) & (5), and 37 C.F.R. §
`
`42.51(b)(1), this document is incomplete and is not a copy which accurately
`
`reproduces the original. Under FRE 801/802, this document constitutes and
`
`contains inadmissible hearsay. Under FRE 901, this document is inadmissible
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`because it has not been shown to be authenticated or identified. Under FRE
`
`401/402/403, this document is inadmissible as irrelevant because, among other
`
`things, it does not form a basis of the instituted grounds, and its probative value is
`
`outweighed by other considerations including prejudice, confusion and waste of
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`time.
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`32. Exhibit 1062
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`Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
`
`confusion and waste of time.
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`33. Exhibit 1063
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`Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
`
`confusion and waste of time.
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`34. Exhibit 1064
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`Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
`
`confusion and waste of time.
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`35. Exhibit 1065
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`Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
`
`confusion and waste of time.
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`36. Exhibit 1066
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`Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
`
`confusion and waste of time.
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`37. Exhibit 1067
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`Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
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`its probative value is outweighed by other considerations including prejudice,
`
`confusion and waste of time.
`
`38. Exhibit 1068
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`Under FRE 401/402/403, this document is inadmissible as irrelevant
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`because, among other things, it does not form a basis of the instituted grounds, and
`
`its probative value is outweighed by other considerations including prejudice,
`
`confusion and waste of time.
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`39. Exhibit 1069
`
`Under FRE 401/402/403, this document is inadmissible as irrelevant
`
`because, among other things, it does not form a basis of the instituted grounds, and
`
`its probative value is outweighed by other considerations including prejudice,
`
`confusion and waste of time.
`
`Respectfully submitted,
`
`
`____/ Kenneth J. Weatherwax /_________
`Kenneth J. Weatherwax, Reg. No. 54,528
`Lowenstein & Weatherwax LLP
`
`Date: December 7, 2021
`
`- 19 -
`
`
`
`Case IPR2021-00909
`Patent 8,243,593
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that the following documents were served
`by electronic service, by agreement between the parties, on the date signed below:
`
`
`
`PATENT OWNER’S OBJECTIONS PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`
`The names and address of the parties being served are as follows:
`
`James L. Day
`Daniel Callaway
`Winston Liaw
`
`
`
`jday@fbm.com
`dcallaway@fbm.com
`wliaw@fbm.com
`calendar@fbm.com
`
`
`
`Respectfully submitted,
`
` / Colette Woo /
`
`Date: December 7, 2021
`
`
`
`
`
`
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