UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`REALTEK SEMICONDUCTOR CORP.,
`Petitioners
`v.
`ATI TECHNOLOGIES ULC
`Patent Owner.
`____________
`
`Case No.: IPR2023-00922
`U.S. Patent No. 8,760,454
`____________
`
`PETITIONERS' OBJECTIONS TO
`EVIDENCE UNDER 37 C.F.R. §42.64(B)(1)
`
`
`____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`REALTEK SEMICONDUCTOR CORP.,
`Petitioners
`v.
`ATI TECHNOLOGIES ULC
`Patent Owner.
`____________
`
`Case No.: IPR2023-00922
`U.S. Patent No. 8,760,454
`____________
`
`PETITIONERS' OBJECTIONS TO
`EVIDENCE UNDER 37 C.F.R. §42.64(B)(1)
`
`
`
`I.
`
`INTRODUCTION
`
`Pursuant to 37 C.F.R. § 42.64(b)(1) and the Federal Rules of Evidence
`
`(“FRE”), Petitioners REALTEK SEMICONDUCTOR CORP. (“Petitioners”)
`
`hereby object to the exhibits cited and relied upon in Patent Owner’s February 23,
`
`2024 Response on the following grounds. For each objected-to exhibit, the pertinent
`
`Federal Rule of Evidence (“FRE”) or other rule that gives rise to the objection is
`
`provided, along with a brief summary of the basis for the objection.
`
`II.
`
`IDENTIFICATION OF CHALLENGED EVIDENCE AND GROUNDS
`FOR OBJECTIONS
`1.
`Exhibits 2009-2053, 2055-2079, 2083-2100, 2104-2112, 2114-2120
`
`37 C.F.R. § 42.61: The exhibits are not admissible under any applicable rule
`
`of the Patent Trial and Appeal Board.
`
`F.R.E. 401/402: The exhibits are not relevant to any ground upon which trial
`
`was instituted. For example, the exhibits have no bearing on whether the challenged
`
`claims are patentable under 35 U.S.C. §§ 102 and 103, the grounds of institution in
`
`this proceeding.
`
`F.R.E. 403: The exhibits include information whose probative value to any
`
`ground upon which trial was instituted is substantially outweighed by the danger of
`
`unfair prejudice, confusing the issues, undue delay, wasting time, or needlessly
`
`presenting cumulative evidence.
`
`-1-
`
`
`
`F.R.E. 801/802/803: The exhibits constitute hearsay, which are not statements
`
`made by a declarant testifying in the current proceeding, that are offered to prove
`
`the truth of the matter asserted in the documents, and Patent Owner has not
`
`sufficiently established that the exhibits fall within any of the exceptions to the
`
`hearsay rule set forth in F.R.E. 803.
`
`F.R.E. 901: The exhibits are inadmissible because Patent Owner has not
`
`submitted sufficient evidence to support that the exhibits are what Patent Owner
`
`claims they are.
`
`2.
`
`Exhibits 2081, 2082, 2128, 2141, 2143
`
`37 C.F.R. § 42.61: The exhibits are not admissible under any applicable rule
`
`of the Patent Trial and Appeal Board.
`
`F.R.E. 401/402: The exhibits are not relevant to any ground upon which trial
`
`was instituted. For example, the exhibits have no bearing on whether the challenged
`
`claims are patentable under 35 U.S.C. §§ 102 and 103, the grounds of institution in
`
`this proceeding.
`
`F.R.E. 403: The exhibits include information whose probative value to any
`
`ground upon which trial was instituted is substantially outweighed by the danger of
`
`unfair prejudice, confusing the issues, undue delay, wasting time, or needlessly
`
`presenting cumulative evidence.
`
`-2-
`
`
`
`F.R.E. 801/802/803: The exhibits constitute hearsay, which are not statements
`
`made by a declarant testifying in the current proceeding, that are offered to prove
`
`the truth of the matter asserted in the documents, and Patent Owner has not
`
`sufficiently established that the exhibits fall within any of the exceptions to the
`
`hearsay rule set forth in F.R.E. 803.
`
`F.R.E. 901: The exhibits are inadmissible because Patent Owner has not
`
`submitted sufficient evidence to support that the exhibits are what Patent Owner
`
`claims they are.
`
`Exhibits 2004, 2103, 2118 (Declaration of Laurent Lefebvre from
`3.
`IPR2015-00325)
`37 C.F.R. § 42.61: The exhibits are not admissible under any applicable rule
`
`of the Patent Trial and Appeal Board.
`
`37 C.F.R. § 42.65: The declaration includes expert testimony that does not
`
`disclose the underlying facts or data on which the opinion is based.
`
`F.R.E. 403: The declaration includes information whose probative value to
`
`any ground upon which trial was instituted is substantially outweighed by the danger
`
`of unfair prejudice, confusing the issues, undue delay, wasting time, or needlessly
`
`presenting cumulative evidence.
`
`F.R.E. 602: The declaration includes statements and testimony made without
`
`any personal knowledge, including and not limited to, the source and content of
`
`-3-
`
`
`
`technical specifications (e.g., Ex. 2004 ¶¶ 7-33), source code (e.g., Ex. 2004 ¶¶ 6,
`
`34, 38, 52), presentations (e.g., Ex. 2004 ¶¶ 4, 49), document logs and file histories
`
`(e.g., Ex. 2004 ¶¶ 39-52), and work on various aspects of the R400 project including
`
`design and testing (e.g., Ex. 2004 ¶¶ 34, 38-52).
`
`F.R.E. 701/702/703: The declaration includes statements and testimony of a
`
`lay witness on conception (e.g., Ex. 2004 ¶¶7-33) and diligence (e.g., Ex. 2004 ¶¶34-
`
`43) not based on scientific, technical, or other specialized knowledge. These
`
`statements and testimony are based on insufficient facts or data, and is not the
`
`product of reliable principles and methods. Further, the relied upon facts and data
`
`are not those on which experts in this field would reasonably rely.
`
`F.R.E. 801/802/805: The declaration includes inadmissible hearsay and/or
`
`double hearsay with no applicable exceptions.
`
`F.R.E. 804: The declaration includes inadmissible hearsay and Patent Owner
`
`has not established that the declarant is unavailable as a witness and none of the
`
`exceptions of Rule 804(b) apply.
`
`F.R.E. 1006: The declaration includes improper summary evidence of certain
`
`presentations (e.g., Ex. 2004 ¶¶4, 49) and file histories (e.g., Ex. 2004 ¶¶ 39-52).
`
`Exhibits 2002, 2115 (Declaration of Andrew Wolfe from IPR2015-
`
`4.
`00325)
`37 C.F.R. § 42.61: The declaration is not admissible under any applicable rule
`
`of the Patent Trial and Appeal Board.
`
`-4-
`
`
`
`37 C.F.R. § 42.65: The declaration includes expert testimony that does not
`
`disclose the underlying facts or data on which the opinion is based.
`
`F.R.E. 401/402: The declaration is not relevant to any ground upon which
`
`trial was instituted. For example, the declaration includes sections on terminologies
`
`and background that have no bearing on whether the challenged claims are
`
`patentable under 35 U.S.C. §§ 102 and 103, the grounds of institution in this
`
`proceeding (e.g., Ex. 2002 ¶¶ 50-60) and prior art that is not of record or at issue in
`
`this action (e.g., Ex. 2002 ¶¶ 276-321).
`
`F.R.E. 403: The declaration includes information whose probative value to
`
`any ground upon which trial was instituted is substantially outweighed by the danger
`
`of unfair prejudice, confusing the issues, undue delay, wasting time, or needlessly
`
`presenting cumulative evidence.
`
`F.R.E. 602: The declaration includes statements and testimony made without
`
`any personal knowledge, including and not limited to, industry acceptance and
`
`adoption of ATI’s unified shader (e.g., Ex. 2002 ¶¶ 322-329).
`
`F.R.E. 702/703: The declaration includes statements and testimony on the
`
`industry acceptance and adoption of ATI’s unified shader (e.g., Ex. 2002 ¶¶ 322-
`
`329). These statements and testimony are based on insufficient facts or data, and is
`
`not the product of reliable principles and methods. Further, the relied upon facts and
`
`data are not those on which experts in this field would reasonably rely.
`
`-5-
`
`
`
`F.R.E. 801/802/805: The exhibit includes inadmissible hearsay and/or double
`
`hearsay with no applicable exceptions.
`
`F.R.E. 804: The declaration includes inadmissible hearsay and Patent Owner
`
`has not established that the declarant is unavailable as a witness and none of the
`
`exceptions of Rule 804(b) apply.
`
`Exhibits 2003, 2117 (Declaration of Calvin Watson from IPR2015-
`
`5.
`00325)
`37 C.F.R. § 42.61: The declaration is not admissible under any applicable rule
`
`of the Patent Trial and Appeal Board.
`
`F.R.E. 403: The declaration includes information whose probative value to
`
`any ground upon which trial was instituted is substantially outweighed by the danger
`
`of unfair prejudice, confusing the issues, undue delay, wasting time, or needlessly
`
`presenting cumulative evidence.
`
`F.R.E. 602: The declaration includes statements and testimony made without
`
`any personal knowledge, including and not limited to, the source and content of
`
`technical specification (e.g., Ex. 2003 ¶¶ 22-129), source code (e.g., Ex. 2003 ¶¶130-
`
`132), presentations (e.g., Ex. 2003 ¶¶133-35), document logs and file histories (e.g.,
`
`Ex. 2003 ¶¶136-48).
`
`F.R.E. 801/802/805: The exhibit includes inadmissible hearsay and/or
`
`double hearsay with no applicable exceptions.
`
`-6-
`
`
`
`F.R.E. 804: The declaration includes inadmissible hearsay and Patent Owner
`
`has not established that the declarant is unavailable as a witness and none of the
`
`exceptions of Rule 804(b) apply.
`
`F.R.E. 1006: The declaration includes improper summary evidence of
`
`certain presentations (e.g., Ex. 2003 ¶¶133-35) and file histories (e.g., Ex. 2003
`
`¶¶136-48).
`
`6.
`
`Exhibits 2122 (Declaration of Calvin Watson)
`
`37 C.F.R. § 42.61: The declaration is not admissible under any applicable rule
`
`of the Patent Trial and Appeal Board.
`
`F.R.E. 403: The declaration includes information whose probative value to
`
`any ground upon which trial was instituted is substantially outweighed by the danger
`
`of unfair prejudice, confusing the issues, undue delay, wasting time, or needlessly
`
`presenting cumulative evidence.
`
`F.R.E. 602: The declaration includes statements and testimony made without
`
`any personal knowledge, including and not limited to, the source and content of
`
`technical specification (e.g., ¶¶ 29-36, 41-42, 58-59), source code (e.g., ¶¶27-28),
`
`presentations (e.g., ¶¶27-28, 37-40, 43-46, 60-83), reports (e.g., 47-57), folder
`
`histories, document logs and file histories (e.g., ¶¶84-123, 128-208), Excel files
`
`(e.g., 124-127).
`
`-7-
`
`
`
`F.R.E. 801/802/805: The exhibit includes inadmissible hearsay and/or
`
`double hearsay with no applicable exceptions.
`
`Exhibits 2005 (Calvin Watson Depo Transcript), 2006 (Andrew
`7.
`Wolfe Depo Transcript), 2007 (Laurent Lefebvre Depo Transcript), 2101
`(Stephen Morein Depo Transcript), 2102 (Laurent Lefebvre Depo Transcript),
`2113 (Andrew Gruber Depo Transcript), 2115 (Andrew Wolfe Depo
`Transcript), 2117 (Calvin Watson Depo Transcript), 2118 (Laurent Lefebvre
`Depo Transcript), 2120 (re: embedded depo transcripts of Nader Bagherzadeh
`(IPR2015-00326 at Exs. 2073 and 2074))
`37 C.F.R. § 42.61: These depositions in which Petitioner was not a party are
`
`not admissible under any applicable rule of the Patent Trial and Appeal Board.
`
`FRCP 32(a)(8): Depositions from earlier actions are not admissible in later
`
`cases when the previous case was not between the same parties.
`
`F.R.E. 804: These depositions include former testimony that is only
`
`admissible if the party (here, Petitioner) had the opportunity to examine the witness
`
`in the earlier action.
`
`F.R.E. 403: The depositions include information whose probative value to
`
`any ground upon which trial was instituted is substantially outweighed by the danger
`
`of unfair prejudice, confusing the issues, undue delay, wasting time, or needlessly
`
`presenting cumulative evidence.
`
`-8-
`
`
`
`Dated: March 1, 2024
`
`
`
`Respectfully submitted,
`
`By:
`
`/Christopher J. Higgins
`
`Jeffrey Johnson
`Reg. No. 53,078
`BAKER BOTTS LLP
`910 Louisiana Street
`Houston, TX 77002
`Telephone: (713) 229-1234
`Facsimile: (713) 229-7922
`Email:
`Jeffrey.johnson@bakerbotts.com
`
`Steve Baik
`Reg. No. 42,281
`WHITE HAT LEGAL
`P. O. Box 382
`San Jose, CA 95002
`Telephone: (650) 618-5282
`Email: sbaik@whitehat.legal
`
`Christopher J. Higgins
`Reg. No. 66,422
`ORRICK, HERRINGTON &
`SUTCLIFFE, LLP
`1152 15th Street, N.W.
`Washington, DC 20005-1706
`Telephone: (202) 339-8400
`Facsimile: (202) 339-8500
`Email: OCHPTABDocket@orrick.com;
`Realtek-AMD_OHS@orrick.com
`
`-9-
`
`
`
`CERTIFICATE OF SERVICE
`The undersigned certifies that on March 1, 2024, a copy of the following
`
`was served in its entirety via electronic mail, upon the following attorneys of
`
`record for the Patent Owner:
`
`William A. Meunier
`Michael T. Renaud
`Adam S. Rizk
`MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND
`POPEO, P.C.
`One Financial Center
`Boston, MA 02111
`
`wameunier@mintz.com
`mtrenaud@mintz.com
`arizk@mintz.com
`
`amd_iprs@mintz.com
`
`/Jeffrey Johnson/
`Jeffrey Johnson
`
`-10-
`
`
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