Paper No. __
`
`Filed on behalf of Petitioner by:
`
`Michael N. Rader, Reg. No. 52,146
`Adam R. Wichman, Reg. No. 43,988
`Gregory S. Nieberg, Reg. No. 57,063
`Marie McKiernan (pro hac vice application forthcoming)
`WOLF GREENFIELD & SACKS, P.C.
`600 Atlantic Ave.
`Boston, MA 02210-2206
`Tel: 617-646-8000
`Fax: 617-646-8646
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`THE DATA COMPANY TECHNOLOGIES INC.,
`Petitioner,
`
`v.
`
`BRIGHT DATA LTD.,
`Patent Owner.
`_____________
`
`Case No. IPR2022-00135
`Patent No. 10,257,319
`_____________
`
`PETITIONER’S OBJECTIONS TO EVIDENCE
`SERVED WITH PATENT OWNER’S RESPONSE
`
`
`
`
`
`
`
`Filed on behalf of Petitioner by:
`
`Michael N. Rader, Reg. No. 52,146
`Adam R. Wichman, Reg. No. 43,988
`Gregory S. Nieberg, Reg. No. 57,063
`Marie McKiernan (pro hac vice application forthcoming)
`WOLF GREENFIELD & SACKS, P.C.
`600 Atlantic Ave.
`Boston, MA 02210-2206
`Tel: 617-646-8000
`Fax: 617-646-8646
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`THE DATA COMPANY TECHNOLOGIES INC.,
`Petitioner,
`
`v.
`
`BRIGHT DATA LTD.,
`Patent Owner.
`_____________
`
`Case No. IPR2022-00135
`Patent No. 10,257,319
`_____________
`
`PETITIONER’S OBJECTIONS TO EVIDENCE
`SERVED WITH PATENT OWNER’S RESPONSE
`
`
`
`
`
`
`
`
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioner objects to evidence served in
`
`connection with the Patent Owner’s Response on August 24, 2022. These
`
`objections have been timely filed and served within five business days of service of
`
`the evidence to which the objections are directed.
`
`I.
`
`Exhibits 2044 and 2020
`
`Petitioner objects to Exhibit 2044, the Declaration of Dr. Tim A. Williams.
`
`Petitioner also objects to Exhibit 2020, which purports to be an appendix to Exhibit
`
`2044.
`
`Petitioner objects to ¶¶ 77, 82, 119, 121-126, 128-129, 229-235 and Exhibit
`
`2020 under Fed. R. Evid. 702 and 703 as unhelpful, not based on sufficient facts or
`
`data, and not the product of reliable principles and methods, to the extent this
`
`testimony relies on documents that have not been established as authentic under
`
`Fed. R. Evid. 901(a), that are not relevant to an issue in this proceeding under Fed.
`
`R. Evid. 401, or that lack foundation.
`
`Petitioner further objects to ¶¶ 121, 123-126, 128-129, 229-230, 234-235,
`
`and Exhibit 2020 under Fed. R. Evid. 702 to the extent that Dr. Williams bases this
`
`testimony on reliance on the work of others, including Mr. Matt McKune or source
`
`code reviewers, whose competence and expertise has not been established.
`
`Petitioner objects to ¶¶ 122-123, 126, 128-129, 229-234, and Exhibit 2020
`
`as reciting out of court statements from others, or the content of documents, for the
`
`
`
`1
`
`
`
`
`
`truth of the matter asserted, making the testimony hearsay under Fed. R. Evid. 801,
`
`and inadmissible Fed. R. Evid. 802.
`
`Petitioner objects to ¶¶ 77, 82, 119, 121-126, 128-129, 229-235 and Exhibit
`
`2020 as lacking foundation.
`
`II. Exhibits 2014-2025 and 2029-2043
`
`Petitioner objects to each of Exhibits 2014-2025 and 2029-2043 as lacking
`
`foundation.
`
`III. Exhibits 2014, 2018-2019, 2025, and 2028-2043
`
`Petitioner objects to each of Exhibits 2014, 2018-2019, 2025, and 2028-2043
`
`for these reasons:
`
` Each of these exhibits is inadmissible because Patent Owner has failed
`
`to authenticate any of these exhibits in accordance with Fed. R. Evid.
`
`901(a). Patent Owner has not produced evidence sufficient to support
`
`a finding that each Exhibit is what Patent Owner claims it is; has not
`
`explained what each document is; has not provided evidence
`
`regarding the origin or preservation each document; has not
`
`established that each is a true and accurate copy; and has not
`
`otherwise authenticated each document.
`
` To the extent Patent Owner attempts during this proceeding to rely on
`
`any statement within these exhibits as evidence to prove the truth of
`
`
`
`2
`
`
`
`
`
`the matter asserted, such statement is hearsay under Fed. R. Evid. 801
`
`and is inadmissible under Fed. R. Evid. 802.
`
` Due to at least these deficiencies, Patent Owner has failed to establish
`
`that these exhibits are relevant under Fed. R. Evid. 401, and therefore
`
`the exhibits are inadmissible under Fed. R. Evid. 402.
`
`IV. Exhibits 2015-2017 and 2045
`
`Petitioner objects to each of Exhibits 2015-2017 and 2045 under Fed. R.
`
`Evid. 401 and 402 because Patent Owner has not established that these exhibits are
`
`relevant to any issue in this proceeding. Specifically, the Patent Owner relies on
`
`these exhibits as evidence of the knowledge of a person having ordinary skill in the
`
`art (POSA). Because Patent Owner takes the position that the date of invention for
`
`each challenged claim is October 8, 2009, Patent Owner has failed to demonstrate
`
`that Exhibit 2015 (dated 2022), Exhibit 2016 (dated 2022), Exhibit 2017 (dated
`
`2015), or Exhibit 2045 (dated 2011) have any relevance to the knowledge of a
`
`POSA in 2009.
`
`V. Exhibits 2021-2024
`
`Petitioner objects to each of Exhibits 2021-2024 for these reasons:
`
` Each of these exhibits is inadmissible because Patent Owner has failed
`
`to authenticate any of these exhibits in accordance with Fed. R. Evid.
`
`901(a). Patent Owner has not produced evidence sufficient to support
`
`
`
`3
`
`
`
`
`
`a finding that each Exhibit is what Patent Owner claims it is; has not
`
`explained what each document is; has not provided evidence
`
`regarding the origin or preservation each document; has not
`
`established that each is a true and accurate copy; and has not
`
`otherwise authenticated each document.
`
` For at least these reasons, Patent Owner has failed to establish that
`
`these exhibits are relevant under Fed. R. Evid. 401, and therefore the
`
`exhibits are inadmissible under Fed. R. Evid. 402.
`
` Petitioner further objects to these exhibits because they are misleading
`
`and incomplete under Fed. R. Evid. 106 and therefore, even if they
`
`were admissible under Fed. R. Evid. 401, would be inadmissible
`
`under Fed. R. Evid. 403.
`
`VI. Exhibits 2026-2027
`
`Petitioner objects to Exhibits 2026-2027 because they are misleading and
`
`incomplete under Fed. R. Evid. 106 and therefore, even if they were admissible
`
`under Fed. R. Evid. 401, would be inadmissible under Fed. R. Evid. 403. It is
`
`improper for Patent Owner to attempt to rely on partial trial transcripts without
`
`providing Petitioner access to the full, unredacted transcripts of the trial.
`
`Petitioner further objects to Exhibits 2026-2027 as violating 37 C.F.R. §
`
`42.53. Rule 42.53(a) states that uncompelled direct testimony “must be submitted
`
`
`
`4
`
`
`
`
`
`in the form of an affidavit.” Exhibits 2026-2027 include direct testimony that is
`
`not submitted in the form of an affidavit and the witness has not been made
`
`available for cross examination by Petitioner. Exhibits 2026-2027 also include
`
`testimony that was not developed in cross examination by Petitioner in deposition
`
`as required by 37 C.F.R. § 42.53(d).
`
`Petitioner further objects to Exhibits 2026-2027 as inadmissible hearsay.
`
`Patent Owner relies on statements within these exhibits as evidence to prove the
`
`truth of the matter asserted. However, the exhibits provide testimony from a
`
`different proceeding in which Petitioner did not have an opportunity to cross
`
`examine any witness. These statements are hearsay under Fed. R. Evid. 801 and
`
`are inadmissible under Fed. R. Evid. 802.
`
`VII. Exhibits 2028
`
`Petitioner objects to Exhibit 2028 under Fed. R. Evid. 402 because Patent
`
`Owner has failed to establish relevance under Fed. R. Evid. 401.
`
`
`
`Dated: August 31, 2022
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`The Data Company Technologies Inc.
`
`By: /Michael N. Rader/
`
`Michael N. Rader, Reg. No. 52,146
`WOLF, GREENFIELD & SACKS, P.C.
`
`
`
`5
`
`
`
`
`
`CERTIFICATE OF SERVICE UNDER 37 C.F.R. § 42.6 (E)(4)
`I certify that on August 31, 2022, I will cause a copy of the foregoing
`
`document, including any exhibits filed therewith, to be served via electronic mail,
`
`as previously consented to by Patent Owner, upon the following:
`
`
`
`
`
`
`
`Thomas M. Dunham
`
`Elizabeth A. O'Brien
`
`
`
`Date: August 31, 2022
`
`
`
`
`
`
`
`
`
`
`
`
`
`tomd@ruyakcherian.com
`elizabetho@ruyakcherian.com
`
`/MacAulay Rush/
`MacAulay Rush
`Paralegal
`WOLF, GREENFIELD & SACKS, P.C.
`
`
`
`
`
`
`
`
`
`6
`
`
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
