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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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`GOOGLE LLC,
`Petitioners
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`v.
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`NEONODE SMARTPHONE LLC,
`Patent Owner
`____________
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`Case IPR2021-01041
`Patent 8,095,879
`____________
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`PATENT OWNER’S OBJECTIONS PURSUANT TO 37 C.F.R. § 42.64(b)(1)
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`Case IPR2021-01041
`Patent 8,095,879
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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 Neonode Smartphone LLC hereby objects to the following
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`documents submitted by Petitioner Google LLC.
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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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`Patent Owner further objects to Petitioner’s Reply to the extent it relies on
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`any of the Exhibits objected to herein, and to the extent it relies on any untimely
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`arguments or evidence which are relied upon to establish the Petition’s case-in-
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`chief and could have been submitted with the Petition.
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`1.
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`Exhibit 1032
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`Under FRE 602/701/801/802 and 37 C.F.R. § 42.61, this document includes
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`testimony that is not shown to be based on first-hand knowledge including of how
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`relied-upon data was generated, is based on speculation, and constitutes and
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`contains inadmissible hearsay. Under FRE 401/402/403/702, this document
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`includes testimony not relevant to the instituted review, because, among other
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`things, it has not been shown that the purportedly expert declarant is qualified to
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`testify competently regarding the matters the opinions are said to address, or that
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`the declarant’s testimony is based on sufficient facts or data or arrived at by
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`reliable principles, procedures, or methods reliably applied to the facts of this case,
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`or that the declarant’s opinion will assist the trier of fact to understand the evidence
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`or to determine any fact in issue and does not have a greater potential to mislead
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`than to enlighten. Under FRE 401/705 and 37 C.F.R. § 42.65, this document does
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`not 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. Under the Trial
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`Practice Guide, this declaration contains untimely arguments and reference to
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`untimely exhibits which are relied upon to establish the Petition’s case-in-chief and
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`could have been submitted with the Petition. Under the Trial Practice Guide,
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`Patent Owner further objects to this document to the extent it is not meaningfully
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`discussed in Petitioner’s Reply and is only incorporated by reference.
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`2.
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`Exhibits 1033-1034, 1037, 1042, 1048
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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), these documents are incomplete and are not a copy which accurately
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`reproduces the original. Under FRE 801/802, these documents constitute and
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`contain inadmissible hearsay. Under FRE 401/705 and 37 C.F.R. § 42.65, these
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`documents do not disclose underlying facts and data. Under FRE 401/402/403,
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`these documents are inadmissible as irrelevant because, among other things, they
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`do not form a basis of the instituted grounds, and their probative value is
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`outweighed by other considerations including prejudice, confusion and waste of
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`time. Under FRE 901, these documents are inadmissible because they have not
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`been shown to be authenticated or identified. Under the Trial Practice Guide, these
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`exhibits are untimely because they are relied upon to establish the Petition’s case-
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`in-chief and could have been submitted with the Petition. Under the Trial Practice
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`Guide, Patent Owner further objects to this document to the extent it is not
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`meaningfully discussed in Petitioner’s Reply and any discussion of it is only
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`incorporated by reference.
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`3.
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`Exhibits 1035 – 1036, 1038-1041
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`Under FRE 801/802, these documents constitute and contain inadmissible
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`hearsay. Under FRE 401/705 and 37 C.F.R. § 42.65, these documents do not
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`disclose underlying facts and data. Under FRE 401/402/403, these documents are
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`inadmissible as irrelevant because, among other things, they do not form a basis of
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`the instituted grounds, and their probative value is outweighed by other
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`considerations including prejudice, confusion and waste of time. Under FRE 901,
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`these documents are inadmissible because they have not been shown to be
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`authenticated or identified. Under the Trial Practice Guide, these exhibits are
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`untimely because they are relied upon to establish the Petition’s case-in-chief and
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`could have been submitted with the Petition. Under the Trial Practice Guide,
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`Patent Owner further objects to this document to the extent it is not meaningfully
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`discussed in Petitioner’s Reply and any discussion of it is only incorporated by
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`reference.
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`4.
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`Exhibits 1043
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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), Patent Owner objects to this document to the extent that it is
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`incomplete and is not a copy which accurately reproduces the original. Under FRE
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`401/402/403, this document is inadmissible as irrelevant because, among other
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`things, it relates to a different patent, does not form a basis of the instituted
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`grounds, and its probative value is outweighed by other considerations including
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`prejudice, confusion and waste of time. Under the Trial Practice Guide, this
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`exhibit is untimely because it is relied upon to establish the Petition’s case-in-chief
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`and could have been submitted with the Petition. Under the Trial Practice Guide,
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`Patent Owner further objects to this document to the extent it is not meaningfully
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`discussed in Petitioner’s Reply and its discussion is only incorporated by reference.
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`Respectfully submitted,
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`____/ Kenneth J. Weatherwax /_________
`Kenneth J. Weatherwax, Reg. No. 54,528
`Lowenstein & Weatherwax LLP
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`Date: July 28, 2022
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`CERTIFICATE OF SERVICE
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`Case IPR2021-01041
`Patent 8,095,879
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`The undersigned hereby certifies that the following documents were served
`by electronic service, by agreement between the parties, on the date signed below:
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`PATENT OWNER’S OBJECTIONS PURSUANT TO 37 C.F.R. § 42.64(b)(1)
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`The names and address of the parties being served are as follows:
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`Erika Harmon Arner
`Kevin D. Rodkey
`Yi Yu
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`erika.arner@finnegan.com
`kevin.rodkey@finnegan.com
`yi.yu@finnegan.com
`Google-Neonode-IPR@finnegan.com
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`Respectfully submitted,
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` / Vinson Lin /
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`Date: July 28, 2022
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