`
`UNITED STATES PATENT AND TRADEMARK OFFICE
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`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`Juniper Networks, Inc., Ruckus Wireless, Inc., Brocade Communication
`Systems, Inc. and Netgear, Inc.,
`
`Petitioners
`
`v.
`
`Chrimar Systems, Inc.,
`
`Patent Owner
`
`
`
`
`
`Inter Partes Review No. 2016-013971
`U.S. Patent No. 9,019,838
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`
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`
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`PETITIONERS’ FIRST SET OF OBJECTIONS TO PATENT OWNER’S
`EVIDENCE PURSUANT TO 37 C.F.R. 42.64
`
`
`1 Ruckus Wireless, Inc., Brocade Communication Systems, Inc., and Netgear, Inc.
`(“Ruckus et al.”) filed a petition in (now terminated) IPR2017-00720, and Ruckus
`et al. has been joined to the instant proceeding.
`
`
`
`
`
`IPR2016-01397
`
`Objections to Evidence
`U.S. Patent No. 9,019,838
`
`Pursuant to 37 C.F.R. § 42.64
`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioners Juniper Networks, Inc.,
`
`Ruckus Wireless, Inc., Brocade Communication Systems, Inc., and Netgear, Inc.
`
`(collectively “Petitioners”) hereby submit the following objections to Patent Owner
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`Chrimar Systems, Inc.’s (“Patent Owner”) Exhibits 2038, 2040-2049, and any
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`reference to/reliance on the foregoing, in Patent Owner’s Response in the above-
`
`captioned inter partes review (“Response”). As required by 37 C.F.R. § 42.62,
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`Petitioners’ objections below apply the Federal Rules of Evidence (“F.R.E.”).
`
`Petitioners’ objections are timely under 37 C.F.R. § 42.64(b)(1) because
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`they are being filed and served within five (5) business days of the filing of Patent
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`Owner’s Response on April 4, 2017. Petitioners’ objections provide notice to
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`Patent Owner that Petitioners may move to exclude these exhibits under 37 C.F.R.
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`§ 42.64(c).
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`I.
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`OBJECTIONS TO EXHIBIT 2038 AND ANY REFERENCE TO/RELIANCE
`THEREON
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`Evidence objected to: Exhibit 2038 (“Declaration of Vijay Madisetti”), and
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`any reference to or reliance thereon.
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`Grounds for objection: Petitioners object to Exhibit 2038, and Patent
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`Owner’s reference to or reliance thereon in this proceeding, under F.R.E. 401, 402
`
`(“Relevance”); F.R.E. 403 (“Unfair Prejudice”); F.R.E. 602 (“Need for Personal
`
`Knowledge”); F.R.E. 702, 703 (“Expert Testimony”); 37 C.F.R. 42.65
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`
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`Page 1 of 8
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`
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`Objections to Evidence
`Pursuant to 37 C.F.R. § 42.64
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`(“Underlying Facts or Data for Expert Testimony”); F.R.E. 801, 802 (“Hearsay”);
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`IPR2016-01397
`U.S. Patent No. 9,019,838
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`
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`and F.R.E. 805 (“Hearsay within Hearsay”).
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`For example, Petitioners object to paragraphs 45, 56, 93, 157, and 191 of
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`Exhibit 2038 as being inadmissible under F.R.E. 702, 703 (“Expert Testimony”),
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`and 37 C.F.R. 42.65 (“Underlying Facts or Data for Expert Testimony”), because
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`underlying facts or data on which the opinions in these paragraphs are purportedly
`
`based are either not disclosed or insufficient. Petitioners further object to this
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`testimony as inadmissible under F.R.E. 602 because there is not sufficient evidence
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`to support that the declarant has personal knowledge of those matters. To the
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`extent Dr. Madisetti’s knowledge is based on what others told him, Petitioners
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`further object to Exhibit 2038 as inadmissible hearsay under F.R.E. 801, 802, and
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`805, and object to this exhibit as it does not support Patent Owner’s
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`characterization of the truth of the matter. Petitioners further object to this exhibit
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`as not relevant under F.R.E. 401 and therefore inadmissible under F.R.E. 402.
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`Even if relevant, Petitioners object to this exhibit under F.R.E. 403 because its
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`probative value is substantially outweighed by a danger of unfair prejudice and
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`confusing the issues.
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`Page 2 of 8
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`
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`Objections to Evidence
`Pursuant to 37 C.F.R. § 42.64
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`II. OBJECTIONS TO EXHIBIT 2048 AND ANY REFERENCE TO/RELIANCE
`THEREON
`
`IPR2016-01397
`U.S. Patent No. 9,019,838
`
`
`
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`Evidence objected to: Exhibit 2048 (“Declaration of Clyde Camp”), and any
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`reference to or reliance thereon.
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`Grounds for objection: Petitioners object to Exhibit 2048, and Patent
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`Owner’s reference to or reliance thereon in this proceeding, under F.R.E. 401, 402
`
`(“Relevance”); F.R.E. 403 (“Unfair Prejudice”); F.R.E. 602 (“Need for Personal
`
`Knowledge”); F.R.E. 801, 802 (“Hearsay”); and F.R.E. 805 (“Hearsay within
`
`Hearsay”).
`
`For example, Paragraphs 4-11 of Exhibit 2048 include statements that are
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`inadmissible under F.R.E. 602 because there is not sufficient evidence to support
`
`that the declarant has personal knowledge of those matters. To the extent Mr.
`
`Camp’s knowledge is based on what others told him, Petitioners further object to
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`Exhibit 2048 as inadmissible hearsay under F.R.E. 801, 802, and 805, and object to
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`this exhibit as it does not support Patent Owner’s characterization of the truth of
`
`the matter. Petitioners further object to this exhibit as not relevant under F.R.E.
`
`401 and therefore inadmissible under F.R.E. 402. Even if relevant, Petitioners
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`object to this exhibit under F.R.E. 403 because its probative value is substantially
`
`outweighed by a danger of unfair prejudice and confusing the issues.
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`Page 3 of 8
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`
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`Objections to Evidence
`Pursuant to 37 C.F.R. § 42.64
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`III. OBJECTIONS TO EXHIBITS 2040-2046, AND ANY REFERENCE TO/RELIANCE
`THEREON
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`IPR2016-01397
`U.S. Patent No. 9,019,838
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`
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`Evidence objected to: Exhibits 2040-2046, and any reference to or reliance
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`thereon.
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`Grounds for objection: F.R.E. 901 (“Authenticating or Identifying
`
`Evidence”); F.R.E. 801, 802 (“Hearsay”); F.R.E. 805 (“Hearsay within Hearsay”);
`
`F.R.E. 401, 402 (“Relevance”); and F.R.E. 403 (“Unfair Prejudice).
`
`Patent Owner fails to provide the authentication required by F.R.E. 901 for
`
`Exhibits 2040-2046. As set forth in § II, above, Patent Owner has not provided the
`
`testimony of any witness with personal knowledge of Exhibits 2040-2046. Patent
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`Owner thus improperly cites to Exhibits 2040-2046 without providing any
`
`authenticating evidence to support a finding that the items are what Patent Owner
`
`claims they are, in violation of F.R.E. 901.
`
`Moreover, Patent Owner has submitted Exhibits 2040-2046 in support of its,
`
`and Mr. Camp’s, statements regarding when, and by whom, Exhibits 2040, 2043,
`
`2044, and 2046, were presented at 802.3af Committee meetings, and when
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`Exhibits 2040-2046 were posted on the 802.3af Committee’s public website. See,
`
`e.g., Exhibit 2048, ¶¶5-11; Response at pp. 21-25. Patent Owner has further
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`submitted Exhibits 2040-2046 in support of its, and Dr. Madisetti’s, statements
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`regarding supposed skepticism by certain individuals. See, e.g., Exhibit 2038,
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`Page 4 of 8
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`
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`Objections to Evidence
`Pursuant to 37 C.F.R. § 42.64
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`¶¶36, 56-67; Response at pp. 21-26. Exhibits 2040-2046 are out of court
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`IPR2016-01397
`U.S. Patent No. 9,019,838
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`
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`statements, offered for the truth of the matter asserted, and are therefore
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`inadmissible hearsay pursuant to F.R.E. 801, 802, and 805. Petitioners further
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`object to this exhibit as not relevant under F.R.E. 401 and therefore inadmissible
`
`under F.R.E. 402. Even if relevant, Petitioners object to this exhibit under F.R.E.
`
`403 because its probative value is substantially outweighed by a danger of unfair
`
`prejudice and confusing the issues.
`
`IV. OBJECTIONS TO EXHIBITS 2047, AND ANY REFERENCE TO/RELIANCE
`THEREON
`
`Evidence objected to: Exhibit 2047, and any reference to or reliance thereon.
`
`Grounds for objection: F.R.E. 901 (“Authenticating or Identifying
`
`Evidence”); F.R.E. 801, 802 (“Hearsay”); F.R.E. 805 (“Hearsay within Hearsay”);
`
`F.R.E. 401, 402 (“Relevance”); and 403 (“Unfair Prejudice).
`
`Patent Owner fails to provide the authentication required by F.R.E. 901 for
`
`Exhibit 2047. Patent Owner has not provided the testimony of any witness with
`
`personal knowledge of Exhibit 2047. Patent Owner thus improperly cites to
`
`Exhibit 2047 without providing any authenticating evidence to support a finding
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`that it is what Patent Owner claims it is, in violation of F.R.E. 901.
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`Moreover, Patent Owner has submitted Exhibit 2047 in support of its, and
`
`Dr. Madisetti’s, statements regarding what a “protocol” is in the “computer
`
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`Page 5 of 8
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`
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`Objections to Evidence
`Pursuant to 37 C.F.R. § 42.64
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`networking field.” See, e.g., Exhibit 2038, ¶ 104; Response at p. 12. Exhibit 2047
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`IPR2016-01397
`U.S. Patent No. 9,019,838
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`
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`is an out of court statement, offered for the truth of the matter asserted, and is
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`therefore inadmissible hearsay pursuant to F.R.E. 801, 802, and 805. Petitioners
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`further object to this exhibit as not relevant under F.R.E. 401 and therefore
`
`inadmissible under F.R.E. 402. Even if relevant, Petitioners object to this exhibit
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`under F.R.E. 403 because its probative value is substantially outweighed by a
`
`danger of unfair prejudice and confusing the issues.
`
`V. OBJECTIONS TO EXHIBITS 2049, AND ANY REFERENCE TO/RELIANCE
`THEREON
`
`Evidence objected to: Exhibit 2049, and any reference to or reliance thereon.
`
`Grounds for objection: F.R.E. 801, 802 (“Hearsay”); F.R.E. 805 (“Hearsay
`
`within Hearsay”); F.R.E. 401, 402 (“Relevance”); and 403 (“Unfair Prejudice).
`
`Patent Owner has submitted Exhibit 2049, U.S. Patent No. 5,995,392, in
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`support of its, and Dr. Madisetti’s, statements regarding thermistors and their use
`
`and behavior during a particular time. See, e.g., Exhibit 2038, ¶¶ 82, 85; Response
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`at pp. 29-31. Exhibit 2049 is an out of court statement, offered for the truth of the
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`matter asserted, and is therefore inadmissible hearsay pursuant to F.R.E. 801, 802,
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`and 805. Petitioners further object to this exhibit as not relevant under F.R.E. 401
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`and therefore inadmissible under F.R.E. 402. Even if relevant, Petitioners object to
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`Page 6 of 8
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`
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`Objections to Evidence
`Pursuant to 37 C.F.R. § 42.64
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`this exhibit under F.R.E. 403 because its probative value is substantially
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`IPR2016-01397
`U.S. Patent No. 9,019,838
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`
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`outweighed by a danger of unfair prejudice and confusing the issues.
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`Respectfully submitted,
`
`By: / Nima Hefazi /
`
` Nima Hefazi
`
`IRELL & MANELLA, LLP
`
`840 Newport Center Dr.
`Suite 400
`Newport Beach, CA 92660
`Telephone: (949)760-0991
`Fax: (949)760-5200
`Email: nhefazi@irell.com
`
`
`
`
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`Date: April 11, 2017
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`Page 7 of 8
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`
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`Objections to Evidence
`Pursuant to 37 C.F.R. § 42.64
`
`
`
`
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`IPR2016-01397
`U.S. Patent No. 9,019,838
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`CERTIFICATE OF SERVICE
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`I hereby certify, pursuant to 37 C.F.R. Section 42.6, that a complete copy of
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`the attached Petitioners’ Objections to Evidence Pursuant to 37 C.F.R. § 42.64 is
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`being served via Electronic Mail on the 11th day of April, 2017, in the United
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`States Patent and Trademark Office/Patent Trial and Appeal Board, and upon the
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`Patent Owner, pursuant to the Patent Owner’s Mandatory Notices, by serving its
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`designated lead and back-up counsel for these proceedings as follows:
`
`Frank A. Angileri (Reg. No. 36,733)
`Thomas A. Lewry (Reg. No. 30,770)
`Marc Lorelli (Reg. No. 43,759)
`Christopher C. Smith (Reg. No. 59,669)
`Brooks Kushman P.C.,
`1000 Town Center, Twenty-Second Floor,
`Southfield, Michigan 48075
`CHRMC0111IPR1@brookskushman.com
`
`Richard W. Hoffmann (Reg. No. 33,711)
`Reising Ethington P.C.
`755 West Big Beaver Road, Suite 1850,
`Troy, MI 48084
`Hoffmann@reising.com
`
`
`
`Dated: April 11, 2017
`
`
`
`
`
`/ Talin Gordnia /
`Talin Gordnia
`Admitted pro hac vice
`
`
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`Page 8 of 8
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