IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________________________________________
`
`SAMSUNG ELECTRONICS CO., LTD., SAMSUNG DISPLAY CO., LTD;
`SONY CORPORATION,
`Petitioners,
`
`v.
`
`SURPASS TECH INNOVATION LLC,
`Patent Owner.
`__________________________________________________________________
`
`Case No. IPR2015-00887
`U.S. Patent No. 7,420,550
`__________________________________________________________________
`
`
`PETITIONERS’ REPLY TO PATENT OWNER’S OPPOSITION TO
`PETITIONERS’ MOTION TO EXCLUDE EVIDENCE
`
`
`
`
`DC: 6045697-4
`
`
`
`
`
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________________________________________
`
`SAMSUNG ELECTRONICS CO., LTD., SAMSUNG DISPLAY CO., LTD;
`SONY CORPORATION,
`Petitioners,
`
`v.
`
`SURPASS TECH INNOVATION LLC,
`Patent Owner.
`__________________________________________________________________
`
`Case No. IPR2015-00887
`U.S. Patent No. 7,420,550
`__________________________________________________________________
`
`
`PETITIONERS’ REPLY TO PATENT OWNER’S OPPOSITION TO
`PETITIONERS’ MOTION TO EXCLUDE EVIDENCE
`
`
`
`
`DC: 6045697-4
`
`
`
`
`
`
`IPR2015-00887
`
`I.
`
`Introduction
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`Petitioners Samsung Electronics Co., Ltd., Samsung Display Co., Ltd., and
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`Sony Corporation submit this reply to Surpass Tech Innovation LLC’s (“Patent
`
`Owner”) Opposition to Petitioners’ Motion to Exclude Evidence (“Opp.”) (Paper
`
`No. 32), filed on April 18, 2016.
`
`II. Argument
`A. Exhibits 2004, 2006, 2007 – Depositions of Thomas Credelle,
`Michael Marentic, and Dr. Richard Zech – Should Be Excluded
`
`Patent Owner claims that the “relied-upon statements of Mr. Credelle, Mr.
`
`Marentic, and Dr. Zech are not ‘hearsay’” under FRE 801. Opp. at 2-3. Patent
`
`owner’s argument lacks merit because Mr. Credelle, Mr. Marentic, and Dr. Zech
`
`were not involved in the ’00887 trial, so none of their testimony was made “while
`
`testifying at the current trial or hearing.” FRE 801(c)(1); see also, Toyota Motor
`
`Corp. v. Am. Vehicular Sci. LLC, IPR2013-00417, Paper No. 78, at 11-12
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`(“testimony in these proceedings … are not an out of court statement, because they
`
`are made in these proceedings, i.e., in court”) (emphasis added). Patent Owner
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`does not contest that the cited deposition testimony of Mr. Credelle (Mot. at 2),
`
`Mr. Marentic (Id. at 4-5), and Dr. Zech (Id. at 5-6) is being used to prove the truth
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`of the matter asserted, and not as evidence of what an ordinary artisan understood
`
`with respect to the technology.
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`1
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`IPR2015-00887
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`Patent Owner also ignores that no relationship exists between Petitioners and
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`LG Display Co., Ltd., the company that actually hired Dr. Zech and Mr. Marentic
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`for the IPR2015-00885 and IPR2015-00913 trials. Dr. Zech and Mr. Marentic
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`were never identified in the ’00887 trial as testifying experts, and were not
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`authorized in any manner to speak for the Petitioners. See also, Glendale Fed.
`
`Bank, FSB v. U.S., 39 Ct. Fed. Cl. 422, 425 (1997) (“[w]hen an expert witness is
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`put forward as a testifying expert at the beginning of trial, the prior deposition
`
`testimony of that expert in the same case is an admission against the party that
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`retained him”). Thus, the respective depositions of Dr. Zech (Ex. 2007) and Mr.
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`Marentic (Ex. 2006) cited in the Patent Owner Response are hearsay and should be
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`excluded, because they do not meet any of the hearsay exceptions of FRE
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`801(d)(2)(A)-(E).
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`Patent Owner claims that Mr. Credelle’s deposition testimony is admissible
`
`under FRE 801(d)(2)(C). Opp. at 5. As noted in Glendale Fed. Bank, an expert
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`witness is the classic non-agent under FRE 801(d)(2)(C) and “there may be an
`
`issue of the scope of the authorization to speak….” Glendale, 39 Ct. Fed. Cl. at
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`424. Patent Owner speculates on whether Petitioners authorized Mr. Credelle’s
`
`testimony on the “subject at issue” in the ’550 patent (Opp. at 5) but proffers no
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`supporting proof. Glendale counsels that the extent of an expert witness’s
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`“authority” to speak on behalf of his client applies only to statements that are
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`2
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`IPR2015-00887
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`“made in the context of the instant proceeding.” Id. at 425. Applying Glendale,
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`Mr. Credelle’s statements were not made in the context of the ’00887 trial, and
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`thus his statements are not authorized and are not admissions by a party-opponent
`
`under FRE 801(d)(2)(C). Mr. Credelle’s deposition (Ex. 2005) should be
`
`excluded.
`
`Patent Owner’s claim that the Marentic and Zech testimony should be
`
`admitted under FRE 804(b)(1) because Petitioners had “the same interest in
`
`challenging the patent claims as the other petitioners in the related proceedings”
`
`(Opp. at 5-6) ignores the plain text of the rule. FRE 804(b) requires that the party
`
`against whom the former testimony is now offered, or its predecessor, have had an
`
`opportunity and similar motive to develop the former testimony. LG Display Co.,
`
`Ltd., the party in IPR2015-00885 and IPR2015-00913 who submitted Dr. Zech’s
`
`and Mr. Marentic’s direct testimony, is not the same party as any of Petitioners,
`
`nor is it a predecessor of any of Petitioners.
`
`Finally, the residual hearsay exception under FRE 807 does not apply. Opp.
`
`at 6. Patent Owner has not shown that the testimony it proffers “is more probative
`
`on the point for which it is offered than any other evidence that the proponent can
`
`obtain through reasonable efforts.” FRE 807(a)(3). In its Patent Owner Response,
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`Patent Owner did not submit a declaration from its own expert witness to challenge
`
`the institution of trial against the ’550 patent. Patent Owner has not shown how
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`3
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`IPR2015-00887
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`testimony from unrelated IPR trials is “is more probative than other evidence” that
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`Patent Owner did not even attempt to obtain. Furthermore, Patent Owner asserts
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`that the testimony of Mr. Credelle, Mr. Marentic, and Dr. Zech proves that “even a
`
`technical witness adverse to Patent Owner supports Patent Owner’s position.”
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`(Opp. at 6) However, if this is what the evidence is being offered to prove, then
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`the evidence is not offered to prove a material fact and the residual exception
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`should not apply. See FRE 807(a)(2).
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`In sum, Exhibits 2004, 2006, and 2007 are out of court statements, are not
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`entitled to any exception under the hearsay rules, and should be excluded.
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`B.
`
`Exhibit 2005 – Exhibit A of October 30, 2015 Deposition of Tsu-
`Jae King Liu, Ph.D. in IPR2015-00887 Case Should Be Excluded
`
`Petitioners’ objection to Exhibit A of Dr. Liu’s deposition testimony is
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`timely. Patent Owner asserts that the proper time to object to Exhibit A was during
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`the deposition of Dr. Liu. Patent Owner does not contest that counsel for Patent
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`Owner first instructed Dr. Liu to draw the electrical symbol for a resistor (Ex.
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`2005, p. 8:3-15), and next then instructed Dr. Liu to draw a circle around the
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`resistor symbol. Id., p. 8:16-18. Dr. Liu did not draw the entire symbol shown in
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`Exhibit A of Exhibit 2005 in response to a question directed to common electrical
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`symbols for a resistor. Patent Owner does not contest that Dr. Liu testified, at
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`pages 8:5-13:17 of Exhibit 2005, that the symbol appearing on the exhibit is not a
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`commonly used symbol with a commonly understood meaning in the art and
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`4
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`IPR2015-00887
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`therefore its meaning depends on the context in which it is used. Patent Owner has
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`not offered any contrary evidence and has not established the meaning of the
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`symbol contrary to the meaning shown by Petitioner in the context of the ’550
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`patent. Thus, Exhibit A of Exhibit 2005 is irrelevant and misleading, and should
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`be excluded under FRE 402 and 403.
`
`C. Exhibit 2024 – Website download entitled “Chapter 3.
`Introduction to Electronics”– Should Be Excluded
`
`Patent Owner ignores the Board’s requirements to authenticate website
`
`printouts. Patent Owner must produce a statement or affidavit from someone with
`
`knowledge of the website. See EMC Corp. v. Personalweb Techs., LLC, IPR2013-
`
`00084, Paper No. 64, p. 45-46 (citations omitted). Patent Owner does not provide
`
`any supplemental evidence to authenticate Exhibit 2024, thus ending the question
`
`of whether Exhibit 2024 is admissible. Patent Owner claims that Exhibit 2024 is
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`entitled to a hearsay exception as “a learned treatise.” Opp. at 9. The arguments
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`that purportedly support Patent Owner’s claim to a hearsay exception are
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`insufficient to bypass the requirements of Personalweb, and Patent Owner provides
`
`no authority holding otherwise. Exhibit 2024 should be excluded.
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`III. Conclusion
`Exhibits 2004-2007 and 2024 are inadmissible in this proceeding for reasons
`
`other than the weight of the evidence, and should be excluded.
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`
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`5
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`
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`Respectfully submitted,
`
`
`
`By___________________________
`Jay I. Alexander
` Registration No.: 32,678
`Andrea G. Reister
` Registration No.: 36,253
`Gregory S. Discher
` Registration No.: 42,488
`COVINGTON & BURLING LLP
`One CityCenter, 850 Tenth Street, NW
`Washington, DC 20001
`(202) 662-6000
`
`
`Walter E. Hanley Jr.
` Registration No.: 28,720
`John Flock
` Registration No.: 39,670
`KENYON & KENYON LLP
`One Broadway
`New York, NY 10004
`(212) 425-7200
`Attorneys for Petitioners
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`6
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`IPR2015-00887
`
`
`Date: April 25, 2016
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`IPR2015-00887
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6, I hereby certify that on this 25th day of April 2016,
`
`the foregoing Petitioners’ Reply to Patent Owner’s Opposition to Petitioners’
`
`Motion to Exclude Evidence was served via electronic mail by agreement of the
`
`parties upon the following counsel of record for Patent Owner:
`
`Wayne M. Helge
`Donald L. Jackson
`Michael R. Casey
`whelge@dbjg.com
`djackson@dbjg.com
`mcasey@dbjg.com
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`Davidson Berquist Jackson & Gowdey L.L.P.
`8300 Greensboro Drive, Suite 500
`McLean, VA 22102
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`Jay I. Alexander
`Registration No.: 32,678
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`Date: April 25, 2016
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