`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`GOOGLE LLC,
`
`Petitioner,
`
`v.
`
`NEONODE SMARTPHONE LLC,
`
`Patent Owner.
`
`U.S. Patent No. 8,095,879
`
`____________________
`
`Case No. IPR2021-01041
`_____________________
`
`
`PETITIONER’S OBJECTIONS TO PATENT OWNER’S EXHIBITS
`
`
`
`
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioner Google LLC submits the
`
`IPR2021-01041
`Patent No. 8,095,879
`
`
`following objections to certain exhibits filed by Patent Owner Neonode
`
`Smartphone LLC (“Neonode”) on April 21, 2022, with Patent Owner’s Response.
`
`Petitioner’s objections apply equally to Patent Owner’s reliance on these exhibits
`
`in any subsequently-filed documents, and Petitioner’s objections to a particular
`
`exhibit apply to any other exhibits relying upon the objected-to exhibit. These
`
`objections are timely, having been filed within five business days of service of
`
`evidence to which the objection is directed. 37 C.F.R. § 42.64(b)(1). Petitioner
`
`objects to the following exhibits:
`
`OBJECTED TO EXHIBITS
`
`2019
`
`2020
`
`2022
`
`2023
`
`2024
`
`Second Declaration of Craig Rosenberg, Ph.D. [Rosenberg-2nd-
`Decl.]
`
`N2 Advertisement Video (uploaded Oct. 18, 2007) (available at
`https://www.youtube.com/watch?v=Hq3S8Crxf2s) [N2-
`Advertisement-Video]
`
`Apple Developer, Human Interface Guidelines, Gestures
`[Gestures]
`
`Bryan M. Wolfe and Rene Ritchie, iPhone 12 and iPhone 12 Pro
`Tricks: 17 ways to do more, faster!, iMore, Oct. 23, 2020 [iMore-
`Website]
`
`Conrad H. Blickenstorfer, Neonode N2, A New Version Of The
`Phone That Pioneered Touchscreens, Pen Computing Magazine,
`Nov. 4, 2007 [Pen-Computing-Magazine-N2-Phone-Review]
`
`1
`
`
`
`IPR2021-01041
`Patent No. 8,095,879
`
`
`OBJECTED TO EXHIBITS
`
`2025
`
`Android Developer, Test Android apps for cars [Test-Android-
`apps-for-cars]
`
`2026
`
`Android Developer, Ice Cream Sandwich [Ice-Cream-Sandwich]
`
`2027
`
`Android Developer, Scroller [Scroller]
`
`2028
`
`Android Developer, Navigation [Navigation]
`
`2029
`
`2031
`
`Apple Developer, Human Interface Guidelines, Terminology
`[Terminology]
`
`Bill Hennessy, The Neonode N2, Trend Hunter, Aug. 18, 2008
`[Trend-Hunter-Article]
`
`2032
`
`Trend Hunter, About page [Trend-Hunter-About]
`
`2033
`
`Neonode N1m First Impression [tnkgrl-Media-post]
`
`2034
`
`Tnkgrl About Page [tnkgrl-Media-About]
`
`2035
`
`Hunting The iPhone Killer; Swedish Neonode Generates Buzz For
`Device, RCR Wireless, Apr. 7, 2007 [iPhone-Killer]
`
`2036
`
`Wikipedia, iPhone [Wikipedia-iPhone-Release-Dates]
`
`2037
`
`2038
`
`2039
`
`Wikipedia, Android (operating system) [Wikipedia-Android-
`Operating-System]
`
`Neonode the only original, Sep. 13, 2007 (available at
`https://www.youtube.com/watch?v=D9N3H1rSxHk) [User-Video]
`
`Jurek Breuninger PhD Dissertation, Nov. 13, 2019 [PhD-
`Dissertation]
`
`2
`
`
`
`IPR2021-01041
`Patent No. 8,095,879
`
`
`OBJECTED TO EXHIBITS
`
`2040
`
`Andreas Hollatz Dissertation, Oct. 2015 [Hollatz-Dissertation]
`
`2041
`
`2042
`
`2043
`
`2044
`
`2045
`
`2046
`
`2047
`
`2048
`
`Neonode N1m review, Jun. 29, 2007 (available at
`https://www.youtube.com/watch?v=Tj-KS2kfIr0) [Neonode N1m
`video-review]
`
`Timothy B. Lee, If Android Is A "Stolen Product," Then So Was The
`Iphone, Ars Technica, Feb. 23, 2012 [Ars-Technica-Article]
`
`User Online Comments of Neonode N2 Overview [Neonode-
`Comments-2]
`
`User Online Comments of Neonode N2 instructions film
`[Neonode-Comments-1]
`
`User Online Comments of Neonode N2 unbox and review video
`[Neonode-Comments-3]
`
`Euro Dollar Exchange Rate (EUR USD) - Historical Chart
`(available at https://www.macrotrends.net/2548/euro-dollar-
`exchange-rate-historical-chart) [Euro-Dollar-Exchange-Rate]
`
`US Inflation Calculator (available at
`https://www.usinflationcalculator.com/) [Inflation-Calculator]
`
`Smartphone Shipments Declined in the Fourth Quarter But 2021
`Was Still a Growth Year with a 5.7% Increase in Shipments,
`According to IDC, Jan. 27, 2021 (available at
`https://www.idc.com/getdoc.jsp?containerId=prUS48830822)
`[Smartphone-Shipments]
`
`2054
`
`Second Declaration of Ulf Martensson [Martensson-Decl.]
`
`2055
`
`Refiled Declaration of Per Bystedt [Bystedt-Decl.]
`
`3
`
`
`
`IPR2021-01041
`Patent No. 8,095,879
`
`
`OBJECTED TO EXHIBITS
`
`2056
`
`Refiled Declaration of Marcus Backlund [Backlund-Decl.]
`
`
`
`I.
`
`Second Declaration of Craig Rosenberg (Exhibit 2019)
`
`Petitioner objects to Second Declaration of Craig Rosenberg under Federal
`
`Rules of Evidence (“FRE”) 801 because the statements contained within are based
`
`on other otherwise objectionable exhibits that constitute inadmissible hearsay and
`
`do not fall within a hearsay exception under FRE 802 or FRE 803. For example,
`
`Dr. Rosenberg’s Declaration relies on the otherwise inadmissible hearsay evidence,
`
`including Exs. 2020, 2022-2029, 2031-2040, 2054-2056, in numerous places.
`
`Petitioner further objects to Second Declaration of Craig Rosenberg under
`
`FRE 702 because the statements within are not based on scientific, technical, or
`
`other specialized knowledge. Dr. Rosenberg’s Declaration relies on inadmissible
`
`hearsay statements, including Exs. 2020, 2022-2029, 2031-2040, 2054-2056, in
`
`numerous places.
`
`II. N2 Advertisement Video (Exhibit 2020)
`
`Petitioner objects to the N2 Advertisement Video under FRE 901. Patent
`
`Owner failed to provide authentication for the date when the video was created or
`
`uploaded. Patent Owner has not offered testimony of one with personal knowledge
`
`of the creation of the video, its source, or its availability.
`
`4
`
`
`
`Petitioner further objects to the N2 Advertisement Video under FRE 801 as
`
`IPR2021-01041
`Patent No. 8,095,879
`
`
`containing hearsay and does not fall within a hearsay exception under FRE 802 or
`
`FRE 803.
`
`III. Apple Developer, Human Interface Guidelines (Exhibits 2022,
`2029)
`
`Petitioner objects to the Apple Developer, Human Interface Guidelines,
`
`Gestures and Terminology under FRE 801 as containing hearsay and not falling
`
`within a hearsay exception under FRE 802 or FRE 803. Patent Owner is relying on
`
`the third-party statements of Apple for the truth of the matter.
`
`Petitioner further objects to the Apple Developer, Human Interface
`
`Guidelines under FRE 402 as irrelevant because these documents lack any
`
`tendency to make a fact more or less probable than it would be without the
`
`evidence. For example, the cited material post-dates the filing date of the ’879
`
`patent and is not relevant to any challenged claim at the time the alleged invention
`
`was made.
`
`IV.
`
`iMore Website (Exhibit 2023)
`
`Petitioner objects to the iMore Website under FRE 901. Patent Owner failed
`
`to provide authentication for the date when the webpage was created. Patent Owner
`
`has not offered testimony of one with personal knowledge of the creation of the
`
`webpage.
`
`5
`
`
`
`Petitioner further objects to the iMore Website under FRE 801 as containing
`
`IPR2021-01041
`Patent No. 8,095,879
`
`
`hearsay and does not fall within a hearsay exception under FRE 802 or FRE 803.
`
`Patent Owner is relying on the statements of third-parties for the truth of the
`
`matter.
`
`Petitioner further objects to the iMore Website under FRE 402 because the
`
`document lacks any tendency to make a fact more or less probable than it would be
`
`without the evidence. For example, the cited material post-dates the filing date of
`
`the ’879 patent and is not relevant to any challenged claim at the time the alleged
`
`invention was made.
`
`V.
`
`Pen Computing Magazine, N2 Phone Review (Exhibit 2024)
`
`Petitioner objects to the Pen Computing Magazine, N2 Phone Review under
`
`FRE 801 as containing hearsay and not falling within a hearsay exception under
`
`FRE 802 or FRE 803. For example, the Exhibit purports to describe the operation
`
`of the device, the history and actions of the company, and the state of the market.
`
`VI. Android Developer Documents (Exhibits 2025-2028)
`
`Petitioner objects to the Android Developer Documents under FRE 402 as
`
`irrelevant because these documents lack any tendency to make a fact more or less
`
`probable than it would be without the evidence. For example, the cited material
`
`post-dates the filing date of the ’879 patent and is not relevant to any challenged
`
`claim at the time the alleged invention was made.
`
`6
`
`
`
`VII. Trend Hunter Documents (Exhibits 2031-2032)
`
`IPR2021-01041
`Patent No. 8,095,879
`
`
`Petitioner objects to the Trend Hunter Documents under FRE 801 as
`
`containing hearsay and not falling within a hearsay exception under FRE 802 or
`
`FRE 803. For example, the Exhibits purport to describe the operations and purpose
`
`of the website TrendHunter.com.
`
`VIII. TNKGRL Media Documents (Exhibits 2033-2034)
`
`Petitioner objects to the tnkgrl Media Documents under FRE 801 as
`
`containing hearsay and not falling within a hearsay exception under FRE 802 or
`
`FRE 803. For example, the Exhibits purport to describe the operations and purpose
`
`of the company tnkgrl Media.
`
`IX. RCRWireless Article (Exhibit 2035)
`
`Petitioner objects to the RCRWireless Article under FRE 801 as containing
`
`hearsay and not falling 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 phones and the Neonode company.
`
`X. Wikipedia Documents (Exhibits 2036-2037)
`
`Petitioner objects to the Wikipedia Documents under FRE 801 as containing
`
`hearsay and not falling within a hearsay exception under FRE 802 or FRE 803.
`
`Patent Owner is relying on the third-party statements of Wikipedia contributors for
`
`the truth of the matter.
`
`7
`
`
`
`XI. Neonode User Video (Exhibit 2038)
`
`IPR2021-01041
`Patent No. 8,095,879
`
`
`Petitioner objects to the Neonode User Video under FRE 901. Patent Owner
`
`failed to provide authentication for the date when the video was created or
`
`uploaded. Patent Owner has not offered testimony of one with personal knowledge
`
`of the creation of the video, its source, or its availability.
`
`Petitioner further objects to the Neonode User Video under FRE 801 as
`
`containing hearsay and not falling within a hearsay exception under FRE 802 or
`
`FRE 803. For example, the Exhibit purports to describe the operation of the
`
`device, the history and actions of the company, and the state of the market.
`
`XII. PhD Dissertation (Exhibit 2039)
`
`Petitioner objects to the Jurek Breuninger PhD Dissertation under FRE 901.
`
`Patent Owner failed to provide authentication for the date when the dissertation
`
`was published. Patent Owner has not offered testimony of one with personal
`
`knowledge of the creation of the dissertation, its source, or its availability.
`
`Petitioner further objects to the PhD Dissertation under FRE 801 as
`
`containing hearsay and not falling within a hearsay exception under FRE 802 or
`
`FRE 803. For example, the Exhibit purports to identify various aspects regarding
`
`the Neonode N1 as true based on the statements of others.
`
`XIII. Hollatz Dissertation (Exhibit 2040)
`
`Petitioner objects to the Hollatz Dissertation under FRE 901. Patent Owner
`
`8
`
`
`
`failed to provide authentication for the date when the dissertation was published.
`
`IPR2021-01041
`Patent No. 8,095,879
`
`
`Patent Owner has not offered testimony of one with personal knowledge of the
`
`creation of the dissertation, its source, or its availability.
`
`Petitioner further objects to the Hollatz Dissertation under FRE 801 as
`
`containing hearsay and not falling within a hearsay exception under FRE 802 or
`
`FRE 803. For example, the Exhibit purports to identify various aspects regarding
`
`the Neonode N1.
`
`XIV. Neonode N1m Video (Exhibit 2041)
`
`Petitioner objects to the Neonode N1m video under FRE 901. Patent Owner
`
`failed to provide authentication for the date when the video was created or
`
`uploaded. Patent Owner has not offered testimony of one with personal knowledge
`
`of the creation of the video, its source, or its availability.
`
`Petitioner further objects to the Neonode N1m Video under FRE 801 as
`
`containing hearsay and not falling within a hearsay exception under FRE 802 or
`
`FRE 803. For example, the Exhibit purports to describe the operation of the N1m
`
`device and the state of the market.
`
`XV. Ars Technica Article (Exhibit 2042)
`
`Petitioner objects to the Ars Technica Article under FRE 801 as containing
`
`hearsay and not falling within a hearsay exception under FRE 802 or FRE 803.
`
`For example, the Exhibit purports to describe the operation of the N1m device and
`
`9
`
`
`
`the state of the market.
`
`XVI. Neonode Comments (Exhibits 2043-2045)
`
`IPR2021-01041
`Patent No. 8,095,879
`
`
`Petitioner objects to the Neonode Comments under FRE 801 as containing
`
`hearsay and not falling within a hearsay exception under FRE 802 or FRE 803.
`
`Patent Owner relies on the statements of third parties for the truth of the matter.
`
`XVII. Currency and Market (Exhibits 2046-2048)
`
`Petitioner objects to the Euro-Dolloar exchange rate, inflation calculator, and
`
`smartphone shipments documents under FRE 801 as containing hearsay and not
`
`falling within a hearsay exception under FRE 802 or FRE 803. Patent Owner
`
`relies on the statements of third parties for the truth of the matter.
`
`XVIII.
`
`Second Declaration of Ulf Martesson (Exhibit 2054)
`
`Petitioner objects to the second Declaration of Ulf Martesson under FRE 602
`
`as lacking personal knowledge. Declarant does not have personal knowledge of the
`
`documents or the information they purport to convey. Declarant was not involved
`
`in the sales department between 2006-2008 and did not create or help create
`
`Exhibit 2010. Declarant testifies to sales and seeks to authenticate Exhibit 2010 for
`
`which he lacks personal knowledge. Because declarant’s testimony is not based on
`
`his personal knowledge, his testimony is inadmissible under FRE 602.
`
`XIX. Refiled Declaration of Per Bystedt (Ex. 2055)
`
`Petitioner objects to the refiled Declaration of Per Bystedt under FRE 801 as
`
`10
`
`
`
`containing hearsay and not falling within a hearsay exception under FRE 802 or
`
`IPR2021-01041
`Patent No. 8,095,879
`
`
`FRE 803. For example, at ¶¶ 5 and 9 of Exhibit 2055, declarant makes statements
`
`about what he was told by other for the truth of the matter asserted. These
`
`statements are inadmissible hearsay under FRE 801 for which no exception
`
`applies.
`
`Petitioner further objects to the Declaration of Per Bystedt under FRE 702 as
`
`inappropriate expert testimony and under FRE 704 as offering legal conclusions
`
`not helpful to the trier of fact, for example, in ¶¶ 3 and 5. Declarant is not testifying
`
`as an expert and expert testimony is improper. These statements are inadmissible
`
`under FRE 702 and FRE 704.
`
`XX. Refiled Declaration of Marcus Backlund (Ex. 2056)
`
`Petitioner objects to the refiled Declaration of Marcus Backlund under FRE
`
`801 as containing hearsay and not falling within a hearsay exception under FRE
`
`802 or FRE 803. For example, at ¶¶ 4 and 12 of Exhibit 2056, declarant recounts
`
`what others allegedly told him of the truth of the matter asserted. In ¶¶ 8, 11,
`
`and 13, declarant refers to “characterize[ations],” mental beliefs, and expressions
`
`of others for the truth of the matter asserted. These statements are inadmissible
`
`hearsay under FRE 801 for which no exception applies.
`
`Petitioner further objects to the Declaration of Marcus Backlund under FRE
`
`602 because declarant offers testimony that he lacks personal knowledge of. In
`
`11
`
`
`
`¶ 15, declarant offers testimony relating to the Neonode’s failure in 2008.
`
`IPR2021-01041
`Patent No. 8,095,879
`
`
`Declarant does not have personal knowledge on what led to Neonode’s failure in
`
`2008, and these statements are inadmissible under FRE 602.
`
`Date: April 28, 2022
`
`
`
`
`
`Respectfully submitted,
`
` /Kevin D. Rodkey/
`Kevin Rodkey
`Reg. No. 65,506
`
`
`
`
`
`
`
`12
`
`
`
`CERTIFICATE OF SERVICE
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that the foregoing
`
`IPR2021-01041
`Patent No. 8,095,879
`
`
`PETITIONER’S OBJECTIONS TO PATENT OWNER’S EXHIBITS was
`
`served on April 28, 2022, via email directed to counsel of record for Patent Owner
`
`at the following:
`
`Philip J. Graves
`philipg@hbsslaw.com
`
`Hagens Berman Sobol Shapiro
`LLP
`301 North Lake Avenue, Suite
`920
`Pasadena, CA
`
`Kenneth Weatherwax
`weatherwax@lowensteinweatherwax.com
`
`Nathan Lowenstein
`lowenstein@lowensteinweatherwax.com
`
`Parham Hendifar
`hendifar@lowensteinweatherwax.com
`
`Neonode_IPRs@LowensteinWeatherwax.com
`
`Lowenstein & Weatherwax LLP
`1880 Century Park East, Suite 815
`Los Angeles, CA 90067
`
`
`Dated: April 28, 2022
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`By: /Daniel E. Doku/
`Daniel E. Doku
`Litigation Legal Assistant
`FINNEGAN, HENDERSON, FARABOW,
`
`GARRETT & DUNNER, L.L.P.
`
`
`
`13
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
