Filed: February 24, 2023
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`––––––––––––––––––
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`––––––––––––––––––
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`MEMORYWEB, LLC,
`Patent Owner.
`
`––––––––––––––––––
`
`Case No. IPR2022-00032
`U.S. Patent No. 9,552,376
`
`––––––––––––––––––
`
`PETITIONER’S OPPOSITION TO PATENT OWNER’S MOTION TO
`EXCLUDE
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`––––––––––––––––––
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`––––––––––––––––––
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`MEMORYWEB, LLC,
`Patent Owner.
`
`––––––––––––––––––
`
`Case No. IPR2022-00032
`U.S. Patent No. 9,552,376
`
`––––––––––––––––––
`
`PETITIONER’S OPPOSITION TO PATENT OWNER’S MOTION TO
`EXCLUDE
`
`
`
`
`
`IPR2022-00032
`
`Petitioner’s Opp. to PO’s Mot. to Exclude
`
`TABLE OF CONTENTS
`
`
`
`I.
`INTRODUCTION ......................................................................................... 1
`II. ARGUMENT .................................................................................................. 1
`A. Undisputed Evidence Demonstrates the Authenticity of the A3UM
`HTML File Set ...................................................................................... 1
`EX1005 Is an Authentic Copy of the A3UM HTML File Set on the
`v3.0 Aperture 3 Installer DVD .............................................................. 3
`1. Mr. Birdsell’s Testimony Demonstrates that EX1005 Is an
`Authentic Copy of the A3UM File Set ....................................... 4
`Dr. Terveen’s Testimony Demonstrates that EX1005 Is an
`Authentic Copy of the A3UM File Set ....................................... 6
`EX1005 Has Indicia and Attributes that Confirm its
`Authenticity ................................................................................. 8
`The Evidence Uniformly Supports the Authenticity of EX1005 ........ 10
`Patent Owner’s Remaining Concerns Do Not Warrant Exclusion of
`EX1005 ................................................................................................ 12
`III. CONCLUSION ............................................................................................ 14
`
`
`2.
`
`3.
`
`B.
`
`C.
`D.
`
`
`
`
`
`
`i
`
`
`
`
`IPR2022-00032
`
`Petitioner’s Opp. to PO’s Mot. to Exclude
`
`I.
`
`INTRODUCTION
`
`The evidence in this record uniformly establishes that Exhibit 1005 is
`
`admissible. Because Patent Owner has not met its burden of establishing it is not,
`
`see 37 C.F.R. § 42.20(c), FLIR Sys., Inc. v. Leak Surveys, Inc., IPR2014-00411,
`
`Paper 113 at 5 (PTAB Sept. 3, 2015), its Motion to exclude should be denied.
`
`II. ARGUMENT
`
`Patent Owner moves to exclude Exhibit 1005, contending it has not been
`
`proven to be an authentic copy of the Aperture 3 User Manual (“A3UM”) under
`
`Federal Rule of Evidence 901 and 902. See Paper No. 35 (“Mot.”). But Patent
`
`Owner mischaracterizes the relevant inquiry, which is whether the PDF that is
`
`EX1005 is an authentic copy of what is undisputed to be the Aperture 3 User
`
`Manual (“A3UM”) in February of 2010—the set of interlinked HTML files with
`
`their associated resources (e.g., images) on the v3.0 Aperture 3 installation DVD
`
`(the “A3UM HTML file set”). EX1020, ¶¶ 9-10, 12-14, 17-18. The totality of the
`
`evidence demonstrates that EX1005 is authentic.
`
`A. Undisputed Evidence Demonstrates the Authenticity of the A3UM
`HTML File Set
`
`In its motion, Patent Owner does not dispute several key facts.
`
`First, Patent Owner does not dispute that the A3UM HTML file set is
`
`present on the v3.0 Aperture 3 installation DVD. Mr. Birdsell and Dr. Terveen
`
`both testified that it is, identified where it is located on the DVD, and described
`
`1
`
`
`
`
`IPR2022-00032
`
`Petitioner’s Opp. to PO’s Mot. to Exclude
`
`how it can be retrieved. E1020, ¶¶ 12-16; EX2026, 29:3-9; EX1003, ¶¶ 74-75, 78-
`
`85, 91-93, 95-97. Patent Owner’s expert, Dr. Surati also successfully repeated the
`
`steps that Dr. Terveen performed to retrieve the A3UM HTML file set from a v3.0
`
`Aperture 3 installation DVD. EX2025, ¶ 117-118, 124; EX1089, 139:20-140:1.
`
`Second, Patent Owner does not dispute that the A3UM HTML file set on the
`
`v3.0 Aperture 3 installation DVD existed prior to February 2010. As its expert
`
`admitted, “all the files on the Installer DVD existed by January 21, 2010 and could
`
`not be modified after that date.” EX1089, 125:3-25; EX1073, 1. Because the files
`
`that make up the A3UM HTML file set are on that v3.0 Aperture installer DVD
`
`and cannot be modified, they are authentic.
`
`Third, Patent Owner does not address, much less present any evidence
`
`contrary to, the testimony of Mr. Matthew Birdsell that the A3UM HTML file set
`
`on the v3.0 Aperture 3 installation DVD is a “one-for-one” copy of A3UM HTML
`
`file set loaded onto Apple’s documentation servers on February 10, 2010.
`
`EX2026, 40:15-41:21, 34:10-35:8, 35:16-37:25.
`
`The evidence thus demonstrates that, as of February 10, 2010, the same
`
`A3UM HTML file set existed on (i) the v3.0 Aperture 3 installation DVD and (ii)
`
`Apple documentation servers.
`
`2
`
`
`
`
`IPR2022-00032
`
`Petitioner’s Opp. to PO’s Mot. to Exclude
`
`B.
`
`EX1005 Is an Authentic Copy of the A3UM HTML File Set on the
`v3.0 Aperture 3 Installer DVD
`
`Patent Owner’s sole basis for excluding EX1005 is its contention that
`
`EX1005 was not “properly” authenticated as a “true and correct copy of A3UM
`
`publicly available as of February 2010.” Mot., 1. But Patent Owner identifies no
`
`evidence that contradicts the testimony of two witnesses or other evidence in this
`
`record establishing that EX1005 is an accurate and complete copy of the A3UM
`
`HTML file set. At bottom, Patent Owner’s motion is based on nothing more than
`
`unsubstantiated speculation that the PDF that is EX1005 might not be a complete
`
`copy of the A3UM HTML file set. That cannot justify exclusion of Exhibit 1005.
`
`To authenticate an item of evidence, Fed. R. Evid. 901(a) requires only that
`
`“the proponent must produce evidence sufficient to support a finding that the item
`
`is what the proponent claims it is.” Fed. R. Evid. 901(b) also provides that
`
`“testimony of a witness with knowledge ‘that an item is what it is claimed to be’
`
`may satisfy the authentication requirement.” Mylan Pharm. Inc. v. Regeneron
`
`Pharm. Inc., IPR2021-00881, Paper 94 at 48 (PTAB Nov. 9, 2022) (quoting Fed.
`
`R. Evid. 901(b)(1)). The PTAB recognizes that authentication is “not an especially
`
`high hurdle for a party to overcome.” Fox Factory, Inc. v. SRAM, LLC, IPR2016-
`
`01876, Paper 59 at 63 (PTAB Apr. 2, 2018); see also Advanced Micro Devices,
`
`Inc. v. Aquila Innovations, Inc., IPR2019-01526, Paper 37 at 99 (PTAB Mar. 10,
`
`2021) (“[A]uthentication is a low bar, requiring only a rational basis that [Exhibit
`3
`
`
`
`
`IPR2022-00032
`
`Petitioner’s Opp. to PO’s Mot. to Exclude
`
`1005] is what it is asserted to be.”); InductEV Inc. v. WiTricity Corp., IPR2021-
`
`01166, Paper 35 at 57 (PTAB Dec. 20, 2022) (“[W]e note that there is a low bar
`
`for authentication”). The evidence in this record easily clears that threshold.
`
`1. Mr. Birdsell’s Testimony Demonstrates that EX1005 Is an
`Authentic Copy of the A3UM File Set
`
`Mr. Birdsell demonstrated by his testimony that he has a unique level of
`
`familiarity with A3UM—he was “the lead writer” of the Aperture 3 User Manual
`
`and personally participated in the creation and distribution of the A3UM HTML
`
`file set. EX1020, ¶¶ 3-4, 8-9; EX2026, 32:20-33:2, 35:16-37:14; 18:15-22. He
`
`also testified from personal recollections that the A3UM HTML file set could be
`
`retrieved from the v3.0 Aperture 3 installation DVD (EX2026, 29:10-15; EX1020,
`
`¶¶ 12(a), 13), and recalled its specific location within the Aperture 3 application
`
`(EX2026, 29:3-9, EX1020, ¶ 13). Mr. Birdsell further testified that the A3UM
`
`HTML file set is copied to a user’s computer when the Aperture 3 installation is
`
`performed using the v3.0 Aperture 3 installation DVD. EX1020, ¶ 14. And he
`
`explained how this same A3UM HTML file set was loaded onto Apple
`
`documentation servers and made available to the public through the Apple.com
`
`website. EX2026, 40:15-41:16.
`
`Given Mr. Birdsell’s unique depth of familiarity with A3UM and the A3UM
`
`HTML file set, he was able to satisfy himself that EX1005 was a true and correct
`
`copy of the A3UM HTML file set distributed in February of 2010 by inspecting it
`4
`
`
`
`
`IPR2022-00032
`
`Petitioner’s Opp. to PO’s Mot. to Exclude
`
`in the manner he described. One way he did that was by confirming that pages in
`
`EX1005 were the same as HTML files in the A3UM HTML file set stored on the
`
`computer and displayed within the Aperture 3 application help system. EX2026,
`
`41:11-20 (“Q How do you know that the version of the HTML file set that is
`
`Exhibit 1005 is the same as what was available in 2010? A Because I spot-
`
`checked it against the files that were on disk and in the app.”). Mr. Birdsell also
`
`testified that the presence of a 2009 copyright notice on pages in EX1005
`
`reinforced his conclusion (EX2026, 41:15-16 (“Also, the copyright 2009 is a dead
`
`give-away.”)), given that he had a specific recollection of personally inserting that
`
`2009 copyright date into A3UM (Id., 39:13-40:10).
`
`And while Patent Owner now criticizes the thoroughness of Mr. Birdsell’s
`
`comparison of EX1005 to the A3UM HTML file set, during his deposition,
`
`counsel for Patent Owner actually dissuaded Mr. Birdsell from taking steps to
`
`further authenticate EX1005. As reflected in the exchange below, Mr. Birdsell
`
`offered to compare the headings in EX1005 to those of an Internet Archive capture
`
`of a web page of the A3UM table of contents on the apple.com website (EX2010),
`
`but Patent Owner’s counsel discouraged him from doing so:
`
`Q· · In Exhibit 2010, do the headings and other table of contents
`references match with the headings in Exhibit 1005?
`
`…
`
`5
`
`
`
`
`IPR2022-00032
`
`Petitioner’s Opp. to PO’s Mot. to Exclude
`
`A Yeah.· So Exhibit 1005 does not have the table of contents
`because it is a file-for-file capture.· So it's the HTML pages.· So
`if you like, I can go through and scroll through every single
`page to ensure that the headings match.
`
`Q· · I don't think we need you to do that.
`
`EX2026, 50:13-51:2 (emphasis added).
`
`Mr. Birdsell’s testimony is reliable, supported by evidence, and confirms
`
`that EX1005 is a true and correct copy of the A3UM HTML file set on the v3.0
`
`Aperture 3 installation disk. EX1020, ¶ 4.
`
`2.
`
`Dr. Terveen’s Testimony Demonstrates that EX1005 Is an
`Authentic Copy of the A3UM File Set
`
`Consistent with Mr. Birdsell’s testimony, Dr. Terveen testified that EX1005
`
`is a true and accurate copy of the A3UM HTML file set. EX1003, ¶ 74; EX2023,
`
`62:3-12. Dr. Terveen took several steps to familiarize himself with relevant facts
`
`to provide that opinion. For example, he confirmed that the A3UM HTML file set
`
`is present on the v3.0 Aperture 3 installation DVD (EX1003, ¶¶75, 79, 82), and
`
`explained that the HTML and image files that make up A3UM are stored in a sub-
`
`folder titled “usermanual” within the “aperture.app” file (id., ¶ 82), which is within
`
`a compressed file named “Archive.pax.gz” on the installation DVD (id., ¶¶ 80-81).
`
`Dr. Terveen also testified that running the Aperture 3 installer copies the A3UM
`
`HTML file set to the computer’s local hard drive (EX1003, ¶¶ 83-85, 91-92) and
`
`confirmed that the size of and number of files in the “usermanual” folder copied to
`6
`
`
`
`
`IPR2022-00032
`
`Petitioner’s Opp. to PO’s Mot. to Exclude
`
`the computer’s hard drive during that installation process are identical to size of
`
`and number of files in the “usermanual” folder obtained directly from the Aperture
`
`3 installation DVD (EX1003, ¶¶ 82, 91-93).
`
`Dr. Terveen also took steps to form his opinion that Exhibit 1005 was a true
`
`and accurate copy of the A3UM HTML file set on the v3.0 Aperture 3 installation
`
`DVD. EX1003, ¶ 74. Dr. Terveen testified that one step he took was to compare
`
`the first 100 pages of EX1005, explaining:
`
`A.· ·I took Exhibit 1005 and I looked through a whole lot of
`pages, one by one, and compared them to the corresponding
`pages in the user manual available on the computer. My
`recollection is I looked at maybe the first 100 or so pages, each
`one…
`
`EX2024, 380:20-25. After verifying the first 100 pages, Dr. Terveen testified that
`
`he then performed a section by section comparison of EX1005 and the A3UM
`
`HTML file set:
`
`A.· ·. . . I think after that, I looked at the first page or two of each
`section and then a handful of pages in each section, and in every
`case, the pages I looked at were identical.
`
`EX2024, 380:25-381:3. See also EX2023, 61:9-17 (“I was pretty satisfied it was
`
`the same.”). Dr. Terveen also confirmed the section headings in EX1005 matched
`
`the section headings of A3UM in a February 17, 2010 Internet Archive capture of
`
`7
`
`
`
`
`IPR2022-00032
`
`Petitioner’s Opp. to PO’s Mot. to Exclude
`
`A3UM available on Apple.com, including by inspecting the HTML source code of
`
`the captured web page. EX1003, ¶ 103. Dr. Terveen’s investigations demonstrate
`
`that his opinion EX1005 was a true and accurate copy of the underlying A3UM
`
`HTML file set (EX2023, 61:9-17) was well-founded and credible.
`
`3.
`
`EX1005 Has Indicia and Attributes that Confirm its
`Authenticity
`
`EX1005 also contains indicia supportive of its authenticity, and which
`
`corroborate the testimony of Mr. Birdsell and Dr. Terveen.
`
`First, each page of EX1005 contains information in its footer that identifies
`
`the path to the HTML file that was used to render that page of EX1005. See
`
`EX1005, 1 (below); see also Petitioner Reply (Paper 26) at 14-15.
`
`
`
`Mr. Birdsell and Dr. Terveen identified this same location within the Aperture.app
`
`as being where the A3UM HTML file set is stored. For example, Mr. Birdsell
`
`testified “[i]t would have been in an English LPROJ folder. So it would be like
`
`resources English LPROJ. And then there would have been a user manual folder
`
`which contained the indexed HTML file, which is the homepage for the entire user
`
`manual.” EX2026, 29:3-9; see also EX1020, ¶¶ 13-14. Dr. Terveen likewise
`
`testified that the “usermanual” folder containing the A3UM HTML file set was
`
`located within local copies of the Aperture.app at this same location:
`8
`
`
`
`
`IPR2022-00032
`
`Petitioner’s Opp. to PO’s Mot. to Exclude
`
`“I used the ‘Get Info’ command on the ‘usermanual’ folder at the path
`‘/Aperture.app/Contents/Resources/English.lproj/aperture_help/en/aperture/’.”
`
`EX1003, ¶ 93. See also EX1003, ¶¶ 83-85 (describing installation and
`
`confirmation that v3.0 of Aperture 3 application installed); ¶¶ 91-93 (identification
`
`of “usermanual” folder within Aperture.app).
`
`
`
`Second, in EX1005, the header of each page contains the title of the specific
`
`section within A3UM encoded by the HTML file that is the source of the
`
`information on that page. EX1005, 1 (below).
`
`
`
`The correspondence of the section headings in A3UM between EX1005 and the
`
`A3UM HTML file set is another indicia of authenticity in EX1005. For example,
`
`Dr. Terveen testified this correspondence supported his conclusion that EX1005
`
`was a true and complete copy of the A3UM HTML file set. EX1003, ¶ 103;
`
`EX2024, 380:12-381:3. Even Patent Owner’s counsel recognized that this
`
`correspondence in section headings was relevant to the authenticity of EX1005—
`
`she asked Mr. Birdsell at his deposition if he had checked if the headings in the
`
`table of contents of A3UM matched those in EX1005, but then dissuaded him from
`
`9
`
`
`
`
`IPR2022-00032
`
`Petitioner’s Opp. to PO’s Mot. to Exclude
`
`confirming they did. EX2026, 50:19-51:2. This additional indicia in EX1005
`
`further supports its authenticity.
`
`
`
`Third, EX1005 contains the phrase “Copyright © 2009 Apple Inc. All rights
`
`reserved” at the bottom of each page or the end of a sequence of pages linked to a
`
`particular HTML file in the footer of EX1005. Compare EX1005, 1 with EX1005,
`
`6-7. Based on his specific recollection of inserting a 2009 copyright date in
`
`A3UM, Mr. Birdsell found this indicia to further support his conclusion that
`
`EX1005 was authentic. EX2026, 41:11-16.
`
`C. The Evidence Uniformly Supports the Authenticity of EX1005
`
`The evidence of record uniformly supports the conclusion that EX1005 is a
`
`true and correct copy of the A3UM HTML file set, and is thus a true and complete
`
`copy of A3UM as it existed in February of 2010. In its motion, Patent Owner
`
`identifies no evidence to the contrary.
`
`Initially, Patent Owner cannot (and thus does not) dispute that the A3UM
`
`HMTL file set on the v3.0 Aperture 3 installation DVD was in existence before
`
`February of 2010. And neither it nor its expert has contended (much less
`
`identified) there actually is any discrepancy between the A3UM HTML file set and
`
`EX1005. For example, Dr. Surati, Patent Owner’s expert, confirmed that he was
`
`able to retrieve the A3UM HTML file set from a v3.0 Aperture 3 installation disk,
`
`but he never compared its contents to EX1005. EX1089, 268:10-19; EX2025,
`
`10
`
`
`
`
`IPR2022-00032
`
`Petitioner’s Opp. to PO’s Mot. to Exclude
`
`¶¶ 37, 124. And Patent Owner has not identified any actual discrepancies between
`
`EX1005 and the A3UM HTML file in its motion, in its objections, in depositions
`
`of Apple witnesses or in any other paper it has filed in this proceeding.
`
`Patent Owner also presents no evidence showing that Mr. Birdsell’s or Dr.
`
`Terveen’s testimony is inaccurate. Patent Owner certainly had ample opportunities
`
`to do so—it deposed both witnesses and extensively probed the basis of Mr.
`
`Birdsell’s and Dr. Terveen’s opinion that EX1005 is a true and complete copy of
`
`the A3UM HTML file set. Yet, in its motion, Patent Owner identifies no incorrect
`
`statements made by either witness that call into question their testimony that
`
`EX1005 is an accurate copy of the A3UM HTML file set.
`
`The record thus contains uncontroverted testimony from two different
`
`individuals that, based on their investigations, EX1005 is a true and complete copy
`
`of the A3UM HTML file set. Fed. R. Evid. 901(a) only requires “evidence
`
`sufficient to support a finding that the item is what the proponent claims it is.” Fed.
`
`R. Evid. 901(a). That standard is more than satisfied by the present record of
`
`evidence.
`
`Instead of proving (or even identifying) an actual discrepancy between
`
`EX1005 and the A3UM HTML file set, Patent Owner alleges that Dr. Terveen and
`
`Mr. Birdsell’s “spot-checking leaves open the possibility that Ex. 1005 contains
`
`material not in the actual Aperture 3 manual or, conversely, that Ex. 1005 omits
`
`11
`
`
`
`
`IPR2022-00032
`
`Petitioner’s Opp. to PO’s Mot. to Exclude
`
`material present in the actual Aperture 3 manual.” Mot. 5. Patent Owner’s
`
`theoretical possibility is not evidence and is not credible in view of the actual
`
`evidence—it provides no basis for concluding that EX1005 is not, on its face, what
`
`it appears to be.
`
`The evidence thus uniformly shows that Exhibit 1005 is what Petitioner
`
`claims it to be under—the HTML file set form of the Aperture 3 User Manual.
`
`D.
`
`Patent Owner’s Remaining Concerns Do Not Warrant Exclusion
`of EX1005
`
`Patent Owner raises other criticisms and concerns in its motion. None
`
`warrant exclusion of EX1005.
`
`For example, Patent Owner contends that “neither Dr. Terveen nor Mr.
`
`Birdsell could properly authenticate Exhibit 1005 as a true, correct, and complete
`
`copy of A3UM” because neither witness possesses the “personal knowledge
`
`required to authenticate [Exhibit 1005] as an admissible exhibit.” Mot., 1-2 (citing
`
`Fed. R. Evid. 901-902; TRW Auto. U.S. LLC v. Magna Elecs. Inc., IPR2014-01348,
`
`Paper 25 at 12 (PTAB January 15, 2016)). The evidence contradicts this assertion
`
`for both individuals. For example, it shows that Mr. Birdsell possessed a unique
`
`degree of familiarity with A3UM and relied on that familiarity to verify the
`
`authenticity of EX1005. See § II.B.1. He and Dr. Terveen also both recognized
`
`what EX1005 was—it was a PDF generated from the HTML files in the A3UM
`
`HTML file set. EX2026, 38:25-39:3 (EX1005 “is a copy of the HTML files of the
`12
`
`
`
`
`IPR2022-00032
`
`Petitioner’s Opp. to PO’s Mot. to Exclude
`
`Aperture 3 user manual”); EX2023, 57:10-16 (EX1005 is “a PDF constructed from
`
`the HTML files that comprise the Aperture 3 User Manual.”). Dr. Terveen also
`
`took steps to become familiar with the format, storage, installation, and contents of
`
`the A3UM HTML file set, and compared hundreds of pages as well as section
`
`headers in EX1005 to the A3UM HTML file set. EX2024, 380:12-381:3; EX2023,
`
`61:9-17. Both witnesses thus possessed sufficient familiarity to authenticate
`
`EX1005 relative to the A3UM HTML file set.
`
`Patent Owner next argues that a witness “must ‘provide factual specificity
`
`about the process by which the electronically stored information is created,
`
`acquired, maintained, and preserved without alteration or change.’” Mot., 2 (citing
`
`Xactware Sols., Inc. v. Pictometry Int’l Corp., IPR2016-00594, Paper 46 at 11-12
`
`(PTAB Aug. 24, 2017)). Patent Owner’s reliance on Xactware Sols., Inc. v.
`
`Pictometry Int'l Corp is misplaced. Unlike here, that case dealt with a website
`
`lacking any “authenticating indicia and circumstances under FRE 901(b)(4)” and
`
`Petitioner’s only evidence was a declaration that failed to provide any explanation
`
`on how or why the document was stored online or how downloading the file online
`
`authenticated the document for what it purported to be. Xactware Sols., Inc. v.
`
`Pictometry Int’l Corp., IPR2016-00594, Paper 46 at 11-12. Here, there is no
`
`dispute over the source or authenticity of the A3UM HTML file set. Moreover,
`
`Mr. Birdsell is a witness with personal knowledge of its creation and distribution,
`
`13
`
`
`
`
`IPR2022-00032
`
`Petitioner’s Opp. to PO’s Mot. to Exclude
`
`and both he and Dr. Terveen provided independent and consistent verifications that
`
`EX1005 is an true and correct copy of the A3UM HTML file set. EX1020, ¶¶ 3-4,
`
`10; EX2026, 35:16-36:12, 40:15-41:21; EX1003, ¶74; EX2024, 251:15-252:16,
`
`380:12-381:3, 61:9-17.
`
`Patent Owner also contends that “[n]either of Petitioner’s witnesses can
`
`confirm that Ex. 1005 is a true and correct copy of A3UM because they did not
`
`themselves create Ex. 1005.” Mot. 5. Whether either person created the PDF that
`
`is EX1005 is irrelevant—that is not required by the Federal Rules of Evidence.
`
`Notably, Patent Owner’s motion cites no authority suggesting an individual cannot
`
`authenticate a record if they were not the person who created it. E.g., Mot., 2
`
`(citing Xactware Sols., IPR2016-00594, Paper 46 at 11-12; TRW Auto. U.S.,
`
`IPR2014-01348, Paper 25 at 12).
`
`III. CONCLUSION
`
`For the foregoing reasons, Petitioner respectfully requests that the Board
`
`deny Patent Owner’s Motion and find Exhibit 1005 admissible for the reasons
`
`identified above.
`
`Dated: February 24, 2023
`
`Respectfully Submitted,
`
`/Jeffrey P. Kushan/
`Jeffrey P. Kushan
`Reg. No. 43,401
`SIDLEY AUSTIN LLP
`1501 K Street, N.W.
`Washington, D.C. 20005
`14
`
`
`
`
`IPR2022-00032
`
`Petitioner’s Opp. to PO’s Mot. to Exclude
`
`jkushan@sidley.com
`(202) 736-8914
`Attorney for Petitioners
`
`15
`
`
`
`
`IPR2022-00032
`
`Petitioner’s Opp. to PO’s Mot. to Exclude
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on this 24th day of February, 2023, a copy of this
`
`PETITIONER’S OPPOSITION TO PATENT OWNER’S MOTION TO
`
`EXCLUDE has been served by electronic mail on the following addresses for
`
`patent owner(s):
`
`Jennifer Hayes, jenhayes@nixonpeabody.com
`George Dandalides, gdandalides@nixonpeabody.com
`Matthew A. Werber, mwerber@nixonpeabody.com
`Daniel Schwartz, djschwartz@nixonpeabody.com
`
`Dated: February 24, 2023
`
`Respectfully Submitted,
`
`/Jeffrey P. Kushan/
`Jeffrey P. Kushan
`Reg. No. 43,401
`SIDLEY AUSTIN LLP
`1501 K Street, N.W.
`Washington, D.C. 20005
`jkushan@sidley.com
`(202) 736-8914
`Attorney for Petitioners
`
`
`
`
`
`
`
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
