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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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`____________________
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`GOOGLE LLC,
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`Petitioner,
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`v.
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`NEONODE SMARTPHONE LLC,
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`Patent Owner.
`
`U.S. Patent No. 8,095,879
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`____________________
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`Case No. IPR2021-01041
`_____________________
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`PETITIONER’S OBJECTIONS TO PATENT OWNER’S EXHIBITS
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`
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`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioner Google LLC submits the
`
`IPR2021-01041
`Patent No. 8,095,879
`
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`following objections to certain exhibits filed by Patent Owner Neonode
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`Smartphone LLC (“Neonode”) on October 18, 2021, with Patent Owner’s
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`Preliminary Response. Petitioner’s objections apply equally to Patent Owner’s
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`reliance on these exhibits in any subsequently-filed documents, and Petitioner’s
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`objections to a particular exhibit apply to any other exhibits relying upon the
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`objected-to exhibit. These objections are timely, having been served within ten
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`business days of the institution of the trial. 37 C.F.R. § 42.64(b)(1). Petitioner
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`objects to the following exhibits:
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`• Declaration of Ulf Martesson (Ex. 2007);
`
`• Declaration of Marcus Backlund (Ex. 2009);
`
`• Declaration of Per Bystedt (Ex. 2011); and
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`• Neonode Confidential Investment Memorandum (Ex. 2012).
`
`I.
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`Declaration of Ulf Martesson (Exhibit 2007)
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`Petitioner objects to the Declaration of Ulf Martesson under Federal Rules of
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`Evidence (“FRE”) 401-403 as irrelevant or, in the alternative, prejudicial,
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`confusing, and/or a waste of time. At ¶ 6 of Exhibit 2007, declarant makes several
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`statements regarding “commercial sales” of the purported N1 and N2 handsets. For
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`example, the declarant states that “[t]he Excel spreadsheet documents sales of
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`26,991 units of the Neonode N2 phone.” Ex-2007, ¶ 6. At least some of these
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`1
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`statements are incorrect and therefore excludable under FRE 401-403. On
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`IPR2021-01041
`Patent No. 8,095,879
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`December 3, 2021, declarant Ulf Martesson testified in IPR2021-00145, Exhibit
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`1054, regarding a substantially similar declaration. Declarant testified that the
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`number of Neonode N2 phones sold is not 26,991 units, as stated in Exhibit 2007,
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`and should instead be much lower. The statements in ¶ 6 that “Neonode’s records
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`presently available document approximately sales of approximately 40,000 N1 and
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`N2 phones” and “a total of 34,991 units of the N2 phone” are also incorrect based
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`on the declarant’s deposition testimony. The statements in Exhibit 2007 are thus
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`irrelevant or, in the alternative, prejudicial, confusing, and/or a waste of time.
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`FRE 401–403.
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`II. Declaration of Marcus Backlund (Ex. 2009)
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`Petitioner objects to the Declaration of Marcus Backlund under FRE 801 as
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`containing hearsay and does not fall within a hearsay exception under FRE 802 or
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`FRE 803. For example, at ¶ 4 of Exhibit 2009, declarant recounts what others “told
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`us,” and ¶ 12 recites what alleged representatives “told us.” In ¶¶ 8, 11, and 13,
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`declarant refers “characterize[ations],” mental beliefs, and expressions of others.
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`These statements are inadmissible hearsay under FRE 801 for which no exception
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`applies.
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`Petitioner further objects to the Declaration of Marcus Backlund under FRE
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`602 because declarant offers testimony that he lacks personal knowledge of. In
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`2
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`IPR2021-01041
`Patent No. 8,095,879
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`¶ 15, declarant offers testimony relating to the Neonode’s failure in 2008. As stated
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`in ¶ 7, declarant worked at Neonode until around October 2005. Declarant thus
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`does not have any personal knowledge on what led to Neonode’s failure in 2008,
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`and these statements are inadmissible under FRE 602.
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`III. Declaration of Per Bystedt (Ex. 2011)
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`Petitioner objects to the Declaration of Per Bystedt under FRE 801 as
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`containing hearsay and does not fall within a hearsay exception under FRE 802 or
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`FRE 803. For example, at ¶ 5 of Exhibit 2011, declarant begins a statement with
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`“they told me,” and at ¶ 9 declarant begins statements with “Ki Tai Lee … told
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`us,” and “Mr. Lee told Samsung’s negotiators.” These statements are inadmissible
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`hearsay under FRE 801 for which no exception applies.
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`Petitioner further objects to the Declaration of Per Bystedt under FRE 702 as
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`inappropriate expert testimony and under FRE 704 as offering legal conclusions
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`not helpful to the trier of fact, for example, in ¶¶ 3 and 5. Declarant is not testifying
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`as an expert and expert testimony is improper. These statements are inadmissible
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`under FRE 702 and FRE 704.
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`IV. Neonode Confidential Investment Memorandum (Ex. 2012)
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`Petitioner objects to the Neonode Confidential Investment Memorandum
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`(Ex. 2012) under FRE 901. Patent Owner failed to provide authentication for this
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`exhibit.
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`3
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`
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`Date: January 28, 2022
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`
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`
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`
`
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`IPR2021-01041
`Patent No. 8,095,879
`
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`Respectfully submitted,
`
` /Kevin D. Rodkey/
`Kevin Rodkey
`Reg. No. 65,506
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`
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`4
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`
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`CERTIFICATE OF SERVICE
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that the foregoing
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`IPR2021-01041
`Patent No. 8,095,879
`
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`PETITIONER’S OBJECTIONS TO PATENT OWNER’S EXHIBITS was
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`served on January 28, 2022, via email directed to counsel of record for Patent
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`Owner at the following:
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`Robert M. Asher
`rasher@sunsteinlaw.com
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`Bruce D. Sunstein
`bsunsteinlaw@sunsteinlaw.com
`
`Timothy M. Murphy
`tmurphy@sunsteinlaw.com
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`Arne Hans
`ahans@sunsteinlaw.com
`
`sunsteinip@sunsteinlaw.com
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`Sunstein LLP
`100 High Street
`Boston, MA 02110-2321
`
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`Dated: January 28, 2022
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`Philip J. Graves
`philipg@hbsslaw.com
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`Mark S. Carlson
`markc@hbsslaw.com
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`Greer N. Shaw
`greers@hbsslaw.com
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`Hagens Berman Sobol Shapiro LLP
`301 North Lake Avenue, Suite 920
`Pasadena, CA
`
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`By: /Daniel E. Doku/
`Daniel E. Doku
`Litigation Legal Assistant
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, L.L.P.
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`5
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