Proceeding No. PGR2023-00039
`Filed February 5, 2024
`Patent Owner’s Objections to Petitioner’s Evidence
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`CRUSOE ENERGY SYSTEMS, LLC
`Petitioner
`
`v.
`
`UPSTREAM DATA INC.
`Patent Owner
`
`Case PGR2023-00039
`Patent No. 11,574,372
`
`PATENT OWNER’S OBJECTIONS TO PETITIONER’S EVIDENCE
`
`1
`
`
`Filed February 5, 2024
`Patent Owner’s Objections to Petitioner’s Evidence
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`CRUSOE ENERGY SYSTEMS, LLC
`Petitioner
`
`v.
`
`UPSTREAM DATA INC.
`Patent Owner
`
`Case PGR2023-00039
`Patent No. 11,574,372
`
`PATENT OWNER’S OBJECTIONS TO PETITIONER’S EVIDENCE
`
`1
`
`
`
`Proceeding No. PGR2023-00039
`Filed February 5, 2024
`Patent Owner’s Objections to Petitioner’s Evidence
`
`Pursuant to 37 C.F.R. § 42.64(b) and the Federal Rules of Evidence
`
`(“FRE”), Patent Owner Upstream Data Inc. submits the following objections to
`
`evidence submitted by Petitioner Crusoe Energy Systems, LLC with its Petition.
`
`These objections are timely filed and served within ten business days of the
`
`Board’s decision to institute trial in this proceeding.
`
`Exhibit 1006
`
`Patent Owner objects to Exhibit 1006 as lacking relevance to the instituted
`
`grounds (see FRE 401 and 402), including due to the Petitioner not having
`
`presented sufficient evidence regarding the public availability of Exhibit 1006 or
`
`its source. This Exhibit should further be excluded because the date and source of
`
`the Exhibit are indeterminant and thus any purported relevance would be
`
`substantially outweighed by a danger of unfair prejudice and confusion (see FRE
`
`403). To the extent Petitioner relies on the content of this Exhibit for the truth of
`
`the matter asserted, Patent Owner objects to the Exhibit as inadmissible hearsay
`
`(see FRE 801 and 802) that does not fall under any exceptions (including FRE 803,
`
`804, 805, and 807). Patent Owner further objects to this Exhibit as lacking
`
`authentication (see FRE 901) because sufficient evidence has not been provided to
`
`establish the authenticity of this exhibit. Exhibit 1006 purports to be brochure
`
`from the Wayback Machine and is alleged to be dated March 5, 2016, but is not
`
`2
`
`
`
`Proceeding No. PGR2023-00039
`Filed February 5, 2024
`Patent Owner’s Objections to Petitioner’s Evidence
`
`otherwise sufficiently authenticated.
`
`Exhibit 1007
`
`Patent Owner objects to Exhibit 1007 as lacking relevance to the instituted
`
`grounds (see FRE 401 and 402), including due to the Petitioner not having
`
`presented sufficient evidence regarding the public availability of Exhibit 1007 or
`
`its source. This Exhibit should further be excluded because the date and source of
`
`the Exhibit are indeterminant and thus any purported relevance would be
`
`substantially outweighed by a danger of unfair prejudice and confusion (see FRE
`
`403). To the extent Petitioner relies on the content of this Exhibit for the truth of
`
`the matter asserted, Patent Owner objects to the Exhibit as inadmissible hearsay
`
`(see FRE 801 and 802) that does not fall under any exceptions (including FRE 803,
`
`804, 805, and 807). Patent Owner further objects to this Exhibit as lacking
`
`authentication (see FRE 901) because sufficient evidence has not been provided to
`
`establish the authenticity of this exhibit. Exhibit 1007 purports to be CryptoKube
`
`Bitcoin Mining Data Center Tour video that is apparently undated, and related
`
`statements offered regarding the date of the video are vague and/or made without
`
`personal knowledge.
`
`Exhibit 1008
`
`Patent Owner objects to Exhibit 1008 for the reasons provided above as to
`
`3
`
`
`
`Proceeding No. PGR2023-00039
`Filed February 5, 2024
`Patent Owner’s Objections to Petitioner’s Evidence
`
`Exhibit 1007 as Exhibit 1008 purports to be a transcript of the audio portion of
`
`Exhibit 1007. Exhibit 1008 is not otherwise appropriate evidence in this
`
`proceeding. The purported transcript (Exhibit 1008) of the offered video (Exhibit
`
`1007) is objected to as lacking relevance to the instituted grounds (see FRE 401
`
`and 402), including due to the Petitioner not having presented sufficient evidence
`
`regarding the public availability of Exhibit 1007 or its source. This Exhibit 1008
`
`(along with Exhibit 1007) should further be excluded because the date and source
`
`of the information presented in this Exhibit 1008 are indeterminant and thus any
`
`purported relevance would be substantially outweighed by a danger of unfair
`
`prejudice and confusion (see FRE 403). To the extent Petitioner relies on the
`
`content of this Exhibit for the truth of the matter asserted, Patent Owner objects to
`
`the Exhibit as inadmissible hearsay (see FRE 801 and 802) that does not fall under
`
`any exceptions (including FRE 803, 804, 805, and 807). Patent Owner further
`
`objects to this Exhibit as lacking authentication (see FRE 901) because sufficient
`
`evidence has not been provided to establish the authenticity of this exhibit. Exhibit
`
`1008 purports to be a transcript of Exhibit 1007 (that is subject to Patent Owner’s
`
`objection based on authenticity) and is apparently undated, and related statements
`
`offered regarding the accuracy of the transcript and the date of the associated video
`
`are vague and/or made without personal knowledge.
`
`4
`
`
`
`Proceeding No. PGR2023-00039
`Filed February 5, 2024
`Patent Owner’s Objections to Petitioner’s Evidence
`
`Exhibit 1013
`
`Patent Owner objects to Exhibit 1013 as lacking relevance to the instituted
`
`grounds (see FRE 401 and 402), including due to the Petitioner not having
`
`presented sufficient evidence regarding the public availability of Exhibit 1013 or
`
`its source. This Exhibit should further be excluded because the date and source of
`
`the Exhibit are indeterminant and thus any purported relevance would be
`
`substantially outweighed by a danger of unfair prejudice and confusion (see FRE
`
`403). To the extent Petitioner relies on the content of this Exhibit for the truth of
`
`the matter asserted, Patent Owner objects to the Exhibit as inadmissible hearsay
`
`(see FRE 801 and 802) that does not fall under any exceptions (including FRE 803,
`
`804, 805, and 807). Patent Owner further objects to this Exhibit as lacking
`
`authentication (see FRE 901) because sufficient evidence has not been provided to
`
`establish the authenticity of this exhibit. Exhibit 1013 purports to be an article
`
`allegedly published in 2015, but is incomplete and the portion provided is not
`
`otherwise sufficiently authenticated.
`
`Exhibit 1015
`
`Patent Owner objects to Exhibit 1015 as lacking relevance to the instituted
`
`grounds (see FRE 401 and 402), including due to the Petitioner not having
`
`presented sufficient evidence regarding the public availability of Exhibit 1015 or
`
`5
`
`
`
`Proceeding No. PGR2023-00039
`Filed February 5, 2024
`Patent Owner’s Objections to Petitioner’s Evidence
`
`its source. This Exhibit should further be excluded because the date and source of
`
`the Exhibit and the statements therein are indeterminant and thus any purported
`
`relevance would be substantially outweighed by a danger of unfair prejudice and
`
`confusion (see FRE 403). To the extent Petitioner relies on the content of this
`
`Exhibit for the truth of the matter asserted, Patent Owner objects to the Exhibit as
`
`inadmissible hearsay (see FRE 801 and 802) that does not fall under any
`
`exceptions (including FRE 803, 804, 805, and 807). Patent Owner further objects
`
`to this Exhibit as lacking authentication (see FRE 901) because sufficient evidence
`
`has not been provided to establish the authenticity of this exhibit. Exhibit 1015
`
`purports to be a Bitcointalk forum post from the Wayback Machine, but is
`
`acknowledged to be a partial snapshot. Further, along with failures of proof
`
`regarding the alleged public availability of Exhibit 1015, Exhibit 1015 is not
`
`otherwise sufficiently authenticated.
`
`Exhibit 1016
`
`Patent Owner objects to Exhibit 1016 as lacking relevance to the instituted
`
`grounds (see FRE 401 and 402), including due to the Petitioner not having
`
`presented sufficient evidence regarding the public availability of Exhibit 1016 or
`
`its source. This Exhibit should further be excluded because the date and source of
`
`the Exhibit and the statements therein are indeterminant and thus any purported
`
`6
`
`
`
`Proceeding No. PGR2023-00039
`Filed February 5, 2024
`Patent Owner’s Objections to Petitioner’s Evidence
`
`relevance would be substantially outweighed by a danger of unfair prejudice and
`
`confusion (see FRE 403). To the extent Petitioner relies on the content of this
`
`Exhibit for the truth of the matter asserted, Patent Owner objects to the Exhibit as
`
`inadmissible hearsay (see FRE 801 and 802) that does not fall under any
`
`exceptions (including FRE 803, 804, 805, and 807). Patent Owner further objects
`
`to this Exhibit as lacking authentication (see FRE 901) because sufficient evidence
`
`has not been provided to establish the authenticity of this exhibit. Exhibit 1016
`
`purports to be a Reddit post allegedly from 7 years before its retrieval, but
`
`Petitioner does not offer further support regarding the alleged public availability of
`
`Exhibit 1016 such that it is not sufficiently authenticated.
`
`Exhibit 1019
`
`Patent Owner objects to Exhibit 1019 as lacking relevance to the instituted
`
`grounds (see FRE 401 and 402), including due to the Petitioner not having
`
`presented sufficient evidence regarding the public availability of Exhibit 1019 or
`
`its source. This Exhibit should further be excluded because the date and source of
`
`the Exhibit are indeterminant and thus any purported relevance would be
`
`substantially outweighed by a danger of unfair prejudice and confusion (see FRE
`
`403). To the extent Petitioner relies on the content of this Exhibit for the truth of
`
`the matter asserted, Patent Owner objects to the Exhibit as inadmissible hearsay
`
`7
`
`
`
`Proceeding No. PGR2023-00039
`Filed February 5, 2024
`Patent Owner’s Objections to Petitioner’s Evidence
`
`(see FRE 801 and 802) that does not fall under any exceptions (including FRE 803,
`
`804, 805, and 807). Patent Owner further objects to this Exhibit as lacking
`
`authentication (see FRE 901) because sufficient evidence has not been provided to
`
`establish the authenticity of this exhibit. Exhibit 1019 purports to be a Youtube
`
`video allegedly dated February 9, 2015, but Petitioner does not offer sufficient
`
`allegations regarding its authenticity and related statements offered regarding the
`
`date and source of the video are vague and/or made without personal knowledge.
`
`Exhibit 1022
`
`Patent Owner objects to Exhibit 1022 as lacking relevance to the instituted
`
`grounds (see FRE 401 and 402), including due to the Exhibit apparently not being
`
`publicly available until 2023. As this Exhibit is irrelevant to any ground in this
`
`trial, any purported relevance would be substantially outweighed by a danger of
`
`unfair prejudice and confusion (see FRE 403). To the extent Petitioner relies on
`
`the content of this Exhibit for the truth of the matter asserted, Patent Owner objects
`
`to the Exhibit as inadmissible hearsay (see FRE 801 and 802) that does not fall
`
`under any exceptions (including FRE 803, 804, 805, and 807). Patent Owner
`
`further objects to this Exhibit as lacking authentication (see FRE 901) because
`
`sufficient evidence has not been provided to establish the authenticity of this
`
`exhibit. Exhibit 1022 purports to be an article regarding Crypto mining, but
`
`8
`
`
`
`Proceeding No. PGR2023-00039
`Filed February 5, 2024
`Patent Owner’s Objections to Petitioner’s Evidence
`
`information regarding this article is incomplete and Exhibit 1022 is not otherwise
`
`sufficiently authenticated.
`
`Exhibit 1023
`
`Patent Owner objects to Exhibit 1023 as lacking relevance to the instituted
`
`grounds (see FRE 401 and 402), including due to the Petitioner not having
`
`presented sufficient evidence regarding the public availability of Exhibit 1023 or
`
`its source. This Exhibit should further be excluded because the date and source of
`
`the Exhibit are indeterminant and thus any purported relevance would be
`
`substantially outweighed by a danger of unfair prejudice and confusion (see FRE
`
`403). To the extent Petitioner relies on the content of this Exhibit for the truth of
`
`the matter asserted, Patent Owner objects to the Exhibit as inadmissible hearsay
`
`(see FRE 801 and 802) that does not fall under any exceptions (including FRE 803,
`
`804, 805, and 807). Patent Owner further objects to this Exhibit as lacking
`
`authentication (see FRE 901) because sufficient evidence has not been provided to
`
`establish the authenticity of this exhibit. Exhibit 1023 purports to be a second part
`
`of a CryptoKube Bitcoin Mining Data Center Tour video that is apparently
`
`undated, and related statements offered regarding the date of the video are vague
`
`and/or made without personal knowledge.
`
`9
`
`
`
`Proceeding No. PGR2023-00039
`Filed February 5, 2024
`Patent Owner’s Objections to Petitioner’s Evidence
`
`These objections have been timely filed and are being concurrently served
`
`on the Petitioner.
`
`February 5, 2024
`
`By: /James M. Heintz, 41,828/
`James M. Heintz, Reg. No. 41,828
`
`James M. Heintz, Reg. No. 41,828
`DLA Piper LLP (US)
`11911 Freedom Drive, Suite 300
`Reston, VA 20190
`Phone: 703-773-4148
`Fax: 703-773-5200
`jim.heintz@dlapiper.com
`
`10
`
`
`
`Proceeding No. PGR2023-00039
`Filed February 5, 2024
`Patent Owner’s Objections to Petitioner’s Evidence
`
`CERTIFICATE OF SERVICE
`Pursuant to 37 C.F.R. §§ 42.6(e)(1) and 42.6(e)(4)(iii), the undersigned
`
`certifies that on February 5, 2024, a complete and entire copy of this Patent
`
`Owner’s Objections to Petitioner’s Evidence was served on Petitioner
`
`electronically by emailing a copy of the same to the following attorney for the
`
`Petitioner:
`
`John Phillips
`Jia Zhu
`PGR54598-0001PS1@fr.com
`
`By:
`
`/James M. Heintz, 41,828/
`James M. Heintz, Reg. No. 41,828
`
`11
`
`
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