UNITED STATES PATENT AND TRADEMARK OFFICE
`
`______________
`
`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.
`
`
`
`Case IPR2016-013971
`
`U.S. Patent No. 9,019,838 B2
`
`
`
`
`
`
`
`
`PATENT OWNER’S OPPOSITION TO PETITIONERS’
`MOTION TO EXCLUDE
`
`
`
`
`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.
`
`
`
`

`

`Case No.: IPR2016-01397
`Patent No.: 9,019,838
`
`
`
`
`Table of Contents
`
`Atty. Dkt. No.: CHRMC0111IPR1
`
`Table of Authorities .................................................................................................. ii
`
`List of Exhibits ......................................................................................................... iii
`
`I.
`
`II.
`
`Introduction ...................................................................................................... 1
`
`The Madisetti Declaration should not be excluded based on
`Petitioners’ late objections ............................................................................... 1
`
`A.
`
`B.
`
`Petitioners’ motion to exclude based on the “time of invention”
`is baseless .............................................................................................. 2
`Contrary to Petitioners’ unsupported statements, Dr. Madisetti’s
`Declaration is not based on speculation ................................................ 4
`1.
`“Unused Pairs” ............................................................................ 4
`2.
`“IsoEthernet” ............................................................................... 6
`3.
`“Noise in Bloch” ......................................................................... 8
`Dr. Madisetti’s Declaration is not inconsistent, but instead
`demonstrates that Petitioners’ use of Hunter is inconsistent................. 9
`D. Dr. Madisetti properly analyzed the entire Hunter reference,
`unlike Petitioners .................................................................................10
`
`C.
`
`III. The Board should not exclude the IEEE exhibits ..........................................10
`
`IV. Exhibit 2047 is proper ...................................................................................13
`
`V.
`
`Exhibit 2049 is Relevant ................................................................................14
`
`VI. Exhibits 2050 and 2054 are relevant to Mr. Crayford’s testimony ...............14
`
`VII. Conclusion .....................................................................................................15
`
`Certificate of Service ...............................................................................................16
`
`Certificate of Compliance Pursuant to 37 C.F.R. § 42.24 .......................................18
`
`
`
`
`
`i
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`

`

`Case No.: IPR2016-01397
`Patent No.: 9,019,838
`
`
`Atty. Dkt. No.: CHRMC0111IPR1
`
`Table of Authorities
`
`Cases
`
`Apple Inc. v. Achates Ref. Pub’g Inc.,
`
`IPR2013-00080, Paper 90 (PTAB June 2, 2014) ............................................ 2
`
`Google, Inc., et. al. v. Jongerius Panoramic Techs., LLC,
`
`IPR2013-00191, Paper 70 (PTAB Aug. 12, 2014) .......................................... 2
`
`In re Am Acad. of Sci. Tech Ctr.,
`
`367 F.3d 1359 (Fed. Cir. 2004) ....................................................................... 1
`
`Interwoven, Inc. v. Vertical Comp. Sys.,
`
`CV 10-04645 RS, 2013 WL 3786633 (N.D. Cal. July 18, 2013) .......... 12, 14
`
`Liberty Mutual Ins. Co. v. Progressive Cas. Ins. Co.,
`
`CBM2012-00002, Paper 66 (PTAB Jan. 23, 2014) ........................................ 1
`
`Plantronics, Inc. v. Aliph, Inc.,
`
`724 F.3d 1343 (Fed. Cir. 2013) .....................................................................12
`
`Valeo North America, Inc. v. Magna Electronics, Inc.,
`
`IPR2014-01204, Paper No. 52 (Jan. 25, 2016) .............................................11
`
`
`
`Rules
`
`37 C.F.R. § 42.64 .................................................................................... 2, 4, 5, 9, 10
`
`37 C.F.R. §42.104 ...................................................................................................... 7
`
`Fed. R. Evid. 901 .....................................................................................................11
`
`
`
`ii
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`

`

`Case No.: IPR2016-01397
`Patent No.: 9,019,838
`
`
`
`
`List of Exhibits
`
`
`Atty. Dkt. No.: CHRMC0111IPR1
`
`Identifier
`
`Exhibit
`Description
`No.
`2017 Memorandum Opinion and Order,
`Dkt. No. 96, filed in Chrimar Systems,
`Inc., et al. v. AMX, LLC, Civil Action
`No. 6:13-cv-881-JDL, Eastern District
`of Texas
`2018 Memorandum Opinion and Order,
`Dkt. No. 105, filed in Chrimar
`Systems, Inc., et al. v. AMX, LLC,
`Civil Action No. 6:13-cv-881-JDL,
`Eastern District of Texas
`2019 Memorandum Opinion and Order,
`Dkt. No. 108, filed in Chrimar
`Systems, Inc., et al. v. AMX, LLC,
`Civil Action No. 6:13-cv-881-JDL,
`Eastern District of Texas
`2020 Memorandum Opinion and Order,
`Dkt. No. 122, filed in Chrimar
`Systems, Inc., et al. v. Alcatel-Lucent,
`et al., Civil Action No. 6:15-cv-163-
`JDL, Eastern District of Texas
`2021 Memorandum Opinion and Order,
`Dkt. No. 123, filed in Chrimar
`Systems, Inc., et al. v. Alcatel-Lucent,
`et al., Civil Action No. 6:15-cv-163-
`JDL, Eastern District of Texas
`2035 Memorandum Opinion and Order,
`Dkt. No. 318, filed in Chrimar
`Systems, Inc., et al. v. AMX, LLC,
`Civil Action No. 6:13-cv-881-JDL,
`Eastern District of Texas
`2036 Response to Office Action (Reexam
`Control No. 90/009,513) (June 15,
`2010)
`
`Date
`10/22/2014
`
`1/8/2015
`
`1/16/2015
`
`3/28/2016
`
`3/28/2016
`
`9/27/2016
`
`6/15/2010
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`iii
`
`

`

`Atty. Dkt. No.: CHRMC0111IPR1
`
`Date
`11/22/2010
`
`
`
`Identifier
`
`
`
`11/5/1999
`
`Madisetti Decl.
`Crayford Dep.
`Anderson 1999
`slides
`
`3/7-8/2000
`
`5/24-25/2000
`
`
`
`
`
`5/24/2000
`
`Dove slides
`
`5/24/2000
`
`Anderson 2000
`slides
`
`7/11-12/2000
`
`
`
`
`
`Karam slides
`
`Case No.: IPR2016-01397
`Patent No.: 9,019,838
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`
`2041
`
`2042
`
`2043
`
`Exhibit
`Description
`No.
`2037 Notice of Intent to Issue Ex Parte
`Reexamination Certificate (Reexam
`Control No. 90/009,513) (Nov. 22,
`2010)
`2038 Declaration of Dr. Vijay Madisetti
`2039 Deposition transcript of Ian Crayford
`2040
`Slides titled “DTE Power via MDI:
`System Requirements,” presented on
`November 5, 1999 by Arlan Anderson
`of Nortel Networks
`IEEE Power via MDI Task Force
`Meeting Minutes from March 7-8,
`2000
`IEEE Power via MDI Task Force
`Meeting Minutes from May 24-25,
`2000
`Slides titled “DTE Power over MDI:
`Building Consensus,” presented on
`May 24, 2000 by Ralph Andersson of
`TDK Semiconductor, Daniel Dove of
`Hewlett Packard, and Robert Muir of
`Level One Communications
`Slides titled “Powering and Discovery
`Alternatives,” presented on May 24,
`2000 by Arlan Anderson of Nortel
`Networks
`IEEE Power via MDI Task Force
`Meeting Minutes from July 11-12,
`2000
`Slides titled “Technical Feasibility of
`Sending Common Mode Power on the
`Signal Pairs,” presented on May 24,
`2000 by Roger Karam and Karl
`Nakamura of Cisco Systems
`
`2044
`
`2045
`
`2046
`
`iv
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`

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`Case No.: IPR2016-01397
`Patent No.: 9,019,838
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`
`Exhibit
`No.
`2047
`
`Description
`E. Krol & E. Hoffman, Internet
`Engineering Task Force Network
`Working Group, Request for
`Comments: 1462, “FYI on “What is
`the Internet?’”
`2048 Declaration of Clyde Camp
`2049 U.S. Patent No. 5,995,392
`2050 Madisetti Curriculum Vitae
`2051 Not used
`2052 U.S. Pat. No. 7,061,142 B1
`2053
`Supplemental Declaration of Dr. Vijay
`Madisetti (pending approval to be
`filed)
`2054 Declaration of Steven Johnson
`(pending approval to be filed)
`2055 Crayford 7-21-17 Deposition
`Transcript (pending approval to be
`filed)
`
`Atty. Dkt. No.: CHRMC0111IPR1
`
`Date
`May 1993
`
`Identifier
`Krol RFC
`
`
`
`
`
`
`
`
`
`
`
`
`Camp Decl.
`
`
`
`the ‘142 patent
`
`
`
`
`
`
`
`
`
`
`
`
`v
`
`

`

`Case No.: IPR2016-01397
`Patent No.: 9,019,838
`
`I.
`
`Introduction
`
`Atty. Dkt. No.: CHRMC0111IPR1
`
`Petitioners’ Motion to Exclude (“Motion”) should be denied because
`
`Petitioners failed to: (1) provide timely and complete objections to Patent Owner
`
`which cover the bases for their Motion, and (2) set forth any legitimate basis for
`
`excluding the challenged evidence of the Patent Owner.
`
`II. The Madisetti Declaration should not be excluded based on
`Petitioners’ late objections
`
`Petitioners’ Motion misapplies the law. Petitioners claim that it is an “abuse
`
`of discretion to admit expert testimony” citing Daubert and Kumho Tire. But these
`
`cases involve a district court’s role as a gatekeeper for a jury – they have nothing
`
`to with admission of evidence in an IPR. And Petitioners fail to cite a single Board
`
`decision where Daubert was the sole basis for exclusion of expert testimony. See,
`
`e.g., Liberty Mutual Ins. Co. v. Progressive Cas. Ins. Co., CBM2012-00002, Paper
`
`66 at 60 (PTAB Jan. 23, 2014) (rejecting Fed. R. Evid. 702 challenge to expert
`
`testimony because “[i]t is within the Board’s discretion to assign the appropriate
`
`weight to be accorded to evidence.”). Unlike jury concerns, the Board is fully
`
`capable of weighing the evidence presented and decide on its own whether that
`
`evidence is relevant to the issues presented. Id.; see also, e.g., In re Am Acad. of
`
`Sci. Tech Ctr., 367 F.3d 1359, 1368 (Fed. Cir. 2004). The Board is well-positioned
`
`to assign the appropriate weight without resorting to improper exclusion of
`
`evidence (as Petitioners propose). Id.
`
`1
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`

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`Case No.: IPR2016-01397
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`Atty. Dkt. No.: CHRMC0111IPR1
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`A.
`
`Petitioners’ motion to exclude based on the “time of
`invention” is baseless
`
`A party wishing to challenge the admissibility of evidence must timely
`
`object to the evidence. 37 C.F.R. § 42.64(b)(1). “Once a trial has been instituted,
`
`any objection must be filed within five business days of service of evidence to
`
`which the objection is directed.” Id. Importantly, “[t]he objection must identify
`
`the grounds for the objection with sufficient particularity to allow correction in
`
`the form of supplemental evidence.” 37 C.F.R. § 42.64(c) (emphasis added).
`
`Failure to provide timely objections with sufficient particularity deprives the other
`
`party of any potential remedial measures provided by 37 C.F.R. § 42.64(b)(1).
`
`See, e.g., Google, Inc., et. al. v. Jongerius Panaramic Techs., LLC, IPR2013-
`
`00191, Paper 70, at 64-65 (PTAB Aug. 12, 2014) (denying a motion to exclude
`
`because Patent Owner failed to identify and explain the associated objections);
`
`Apple Inc. v. Achates Ref. Pub’g Inc., IPR2013-00080, Paper 90 at 49 (PTAB June
`
`2, 2014) (denying a motion to exclude for failure to allege that an objection was
`
`timely served).
`
`Petitioners’ Motion references paragraphs 37, 85, 90, 155, 189, and 232 of
`
`Ex. 2038, and seeks to exclude the Madisetti Declaration allegedly in its entirety
`
`because “Dr. Madisetti relies on the wrong date of invention.” (Motion, p. 2.)
`
`Petitioners identify their Objections (“Paper 26”) on page 1 of their Motion, but
`
`then ignore those Objections when seeking to have Dr. Madisetti’s declaration
`
`2
`
`

`

`Case No.: IPR2016-01397
`Patent No.: 9,019,838
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`excluded based on the wrong invention date. The reason is clear – Petitioners did
`
`Atty. Dkt. No.: CHRMC0111IPR1
`
`not present any timely Objections based on the date of invention. Indeed,
`
`Petitioners’ Objections never mention “a time of invention issue” and, instead,
`
`reference different paragraphs—45, 56, 93, 157, and 191 (Paper 26 at 2)—of the
`
`Madisetti Declaration, which have nothing to do with “date of invention.”
`
`Accordingly, Petitioners waived any “time of invention” objection.
`
`In any event, the “time of invention” is irrelevant to the matters at issue in
`
`the Petition, which is likely why Petitioners did not timely raise this issue.
`
`Petitioners cite no evidence that anything relevant to Petition Grounds 1 and 2
`
`changed between 1997 (the date mentioned by Dr. Madisetti) and 1998 (the date
`
`on the patent). If Petitioners had relied on prior art from 1998 (e.g., the De Nicolo
`
`patents), Patent Owner would have presented evidence of its 1997 invention.
`
`Petitioners cite broadly to “prior art patents on the face of the ‘838 patent” to claim
`
`relevance, but in reality, Petitioners filed a Reply that includes improper new
`
`exhibits (two Fisher patents and two De Nicolo patents, Ex. 1025-1028) and a
`
`lengthy discussion of those new exhibits by Mr. Crayford (Ex. 1046 at ¶¶27-35).
`
`These references did not appear in the Petition and form no part of any invalidity
`
`Ground presented. Petitioners’ untimely reliance on the De Nicolo patents
`
`forecloses Patent Owner from establishing that De Nicolo, and other late
`
`references, are not prior art to Chrimar’s patents as Chrimar did in another IPR
`
`3
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`

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`Case No.: IPR2016-01397
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`(IPR2016-00569) where De Nicolo was the basis for the asserted Ground. In its
`
`Atty. Dkt. No.: CHRMC0111IPR1
`
`Response, Chrimar established that the De Nicolo patents are not prior art. (Id.,
`
`Paper 31 at 17-27).
`
`Petitioners waived any objection based on “time of the invention.” Had that
`
`objection been raised in the Objections (Paper 26), Chrimar would have presented
`
`under 37 C.F.R. § 42.64(b)(2) evidence, like that provided in IPR2016-00569, of
`
`prior invention. Petitioners’ failure to object with particularity deprived Chrimar of
`
`the remedies provided for by the Rules.
`
`B. Contrary to Petitioners’ unsupported statements, Dr.
`Madisetti’s Declaration is not based on speculation
`
`Petitioners’ Motion objects to Dr. Madisetti’s opinions regarding “unused
`
`pairs,” “isoEthernet,” and “noise in Bloch.” But Petitioners did not identify these
`
`objections in their Objections (Paper 26). Accordingly, since these objections were
`
`not set forth “with sufficient particularity to allow correction in the form of
`
`supplemental evidence,” Petitioners have waived them. 37 C.F.R. § 42.64(b).
`
`Petitioners’ failure to provide an objection with sufficient particularity has
`
`deprived Chrimar of the remedial measures provided for by the Rules.
`
`Chrimar addresses the specific waivers below, showing why each objection
`
`is meritless.
`
`1.
`
`“Unused Pairs”
`
`Petitioners objects to paragraphs 37, 48, 49, and 51 of the Madisetti
`
`4
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`

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`Case No.: IPR2016-01397
`Patent No.: 9,019,838
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`Declaration – objections not raised in Petitioners’ Objections (Paper 26) – and
`
`Atty. Dkt. No.: CHRMC0111IPR1
`
`therefore objections that are waived. For the paragraphs Petitioners did identify in
`
`their Objections, Chrimar supplied supplemental evidence as permitted by the
`
`Rules. (Paper 31). To permit Petitioners to present a Motion to Exclude on items
`
`not raised in their objections deprives Chrimar of the remedial measures provided
`
`for by 37 C.F.R. § 42.64(b)(2).
`
`Petitioners argue that Dr. Madisetti is incorrect regarding the availability of
`
`“unused pairs.” Rather than arguing to exclude evidence, Petitioners seem to be
`
`simply repackaging their Reply arguments – not their objections – to present in this
`
`Motion. Such re-hashing of the Reply is improper as it provides Petitioners
`
`additional (not provided for by the rules) pages to argue their grounds.
`
`Regardless, Petitioners’ arguments fall flat. Dr. Madisetti relied on his
`
`education, training, and experience for these opinions. (See, e.g., Ex. 1020, 342:5-
`
`343:2; 351:9-17, 353:6-17.) In addition, Dr. Madisetti relied on the IEEE 802.3
`
`specification that Petitioners presented in their “Petition Figure 7.” That diagram
`
`shows eight pins of the standard RJ-45 jack and plug and states that there are two
`
`pairs of contacts “not used by 10BASE-T.” Dr. Madisetti’s opinions were fully
`
`supported. They should not be excluded.
`
`5
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`

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`Case No.: IPR2016-01397
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`Atty. Dkt. No.: CHRMC0111IPR1
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`
`
`This is just one item of evidence which demonstrates that “unused pairs”
`
`were available. In paragraph 55 of his Declaration, Dr. Madisetti identifies the
`
`Huizinga reference as further support. (Ex. 2038.) This testimony is not
`
`“speculation” as Petitioners claim, but is a real world analysis (including the IEEE
`
`recognition of “unused pairs”) used to evaluate Petitioners’ hindsight-based
`
`reconstructions of the claimed invention. See, e.g., Ex. 2038 at ¶¶49-67.
`
`Petitioners’ request to exclude this evidence is meritless.
`
`2.
`
`“IsoEthernet”
`
`Petitioners specifically take issue with paragraphs 76 and 77 of the Madisetti
`
`Declaration. But again, those paragraphs were never mentioned in Petitioners’
`
`Objections (Paper 26).
`
`Instead, Petitioners again default to rearguing their Reply brief – even citing
`
`to sections of it. (Motion at 7.) These arguments are predicated on Petitioners
`
`shifting away from their stated Grounds in the Petition to an alternative argument
`
`relying on IEEE 802.9 in Ground 1. But the Petition’s only basis that Ground 1
`
`6
`
`

`

`Case No.: IPR2016-01397
`Patent No.: 9,019,838
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`discloses Ethernet is Hunter (Ex. 1003) – nothing else. (See, e.g., Pet. at 7.)
`
`Atty. Dkt. No.: CHRMC0111IPR1
`
`In their original Petition, Petitioners assert that the “10Base-T bus” disclosed
`
`in Fig. 2 (comprising connectors 240, 250) carried Ethernet data. (See, e.g., Pet. at
`
`24-26.) Four times, the Petition quotes Hunter’s term “isoEthernet®” as
`
`something separate and apart from “Ethernet®,” with no explanation or analysis.
`
`(e.g., Pet. at 8, 26.)
`
`But in their Reply, Petitioners rely on a different standard covering
`
`isoEthernet®. Crayford’s new expert declaration, submitted with the Reply, makes
`
`this change clear. (Reply at 15:10-12; 19:14-17; 22:3-10; Ex. 1046 at ¶¶48, 67-68,
`
`74, 80-81). But if Petitioners wanted to rely on a particular standard to support one
`
`of their grounds they should have raised the standard in their original Petition, as
`
`they were required to do by 37 C.F.R. §42.104(b)(5). Now, Petitioners claim that
`
`Dr. Madisetti is “unreliable” because he pointed out the flaws in Ground 1, but
`
`Petitioners’ own expert testified that Dr. Madisetti was correct. (Ex. 2055 at 15:2-
`
`16:9; see also, Ex. 1003 (Hunter) at 14:24-15:21; Pet. at 27.) Petitioners now
`
`improperly seek to change Ground 1 by relying on evidence that was not presented
`
`in the Petition. This is not a flaw in Dr. Madisetti’s analysis, but an
`
`acknowledgement by Petitioners that they failed to meet their burden of proof and
`
`need to revamp their theory. Petitioners’ motion to exclude Dr. Madisetti’s
`
`opinions regarding isoEthernet should be denied.
`
`7
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`Case No.: IPR2016-01397
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`
`3.
`
`“Noise in Bloch”
`
`Atty. Dkt. No.: CHRMC0111IPR1
`
`Petitioners specifically take issue with paragraphs 30 and 86 of the Madisetti
`
`Declaration regarding noise in the Bloch combination of Ground 2. But, those
`
`paragraphs were not identified in Petitioners’ Objections (Paper 26), so the
`
`objection is untimely.
`
`As noted in Dr. Madisetti’s declaration (¶86), Petitioners’ expert, Mr.
`
`Crayford, admitted that there was a “possibility” of a noise risk if the Bloch
`
`circuitry was used in an Ethernet network. (See, e.g., Ex. 2039 at 172:20-173:13;
`
`168:6-14; 169:14-15.) Mr. Crayford further acknowledged that Bob Smith
`
`terminations are used “for signaling integrity reasons, primary to clean up signal
`
`and minimize emissions,” and without such a termination there is noise. (Ex. 2039
`
`at 43:11-18.) Combining Bloch and IEEE as proposed by the Petition would
`
`destroy the Bob Smith terminations, and therefore, introduce unacceptable noise.
`
`Notably, Petitioners’ Motion does not contest Dr. Madisetti’s opinion–they can’t.
`
`Petitioners’ own expert confirmed these well-understood principles based on his
`
`own education, experience, and training. Petitioners purport to be unable to “assess
`
`whether the reasoning or methodology underlying [Dr. Madisetti’s] testimony is
`
`scientifically valid.” (Mtn. at 8.) Petitioners could just ask their own expert about
`
`the validity of this statement, just like Dr. Madisetti did during his deposition.
`
`There is no lack of support.
`
`8
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`

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`Case No.: IPR2016-01397
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`Atty. Dkt. No.: CHRMC0111IPR1
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`If Petitioners had properly objected in a timely fashion, Chrimar could have
`
`assessed whether additional support (in addition to Mr. Crayford’s testimony and
`
`basic knowledge of frequency switching as described) was required. Because
`
`Petitioners did not raise this objection, Patent Owner was deprived of its
`
`opportunity to supplement the already established record on the presence of noise
`
`without a functioning Bob Smith termination.
`
`C. Dr. Madisetti’s Declaration is not inconsistent, but instead
`demonstrates that Petitioners’ use of Hunter is inconsistent
`
`Petitioners take issue for the first time with paragraphs 69 and 167 of the
`
`Madisetti Declaration. Again, Petitioners waived those objections by not raising
`
`them in Paper 26. 37 C.F.R. § 42.64(b).
`
`Petitioners now argue that Dr. Madisetti uses a faulty claim construction for
`
`“terminal equipment.” Dr. Madisetti testifies that “terminal” means at the end.
`
`Indeed, anyone can look to a dictionary to understand that this is true. In fact,
`
`other claims use the term “end device” as a synonym. Instead of using the ordinary
`
`meaning of the claim term, as stated in the Petition, Petitioners seek to construe
`
`“terminal equipment” for the first time in their Reply and purport to define it as
`
`equipment that can be in the middle (“intermediate”) rather than at the end. (Reply
`
`at 12.) Such an interpretation by Petitioners is too late and improperly strips this
`
`limitation of its meaning. Again, Petitioners have repackaged their Reply as a
`
`Motion to Exclude – even relying on portions of their Reply (Mot. at 12-15) for
`
`9
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`

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`Case No.: IPR2016-01397
`Patent No.: 9,019,838
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`support. Regardless, this objection was not raised previously and has been waived.
`
`Atty. Dkt. No.: CHRMC0111IPR1
`
`D. Dr. Madisetti properly analyzed the entire Hunter
`reference, unlike Petitioners
`
`Petitioners take issue for the first time with paragraph 83 of the Madisetti
`
`Declaration. Again, Petitioners waived those objections by not raising them in
`
`Paper 26. 37 C.F.R. § 42.64(b).
`
`Petitioners argue that because a protective device is disclosed and included
`
`in some claims of Hunter, Dr. Madisetti took the disclosure from Hunter that a
`
`“protective device 213 is desirable, but not necessary to the present invention” out
`
`of context. Petitioners have their opinion and Dr. Madisetti has his opinion. There
`
`is no basis for Petitioners’ complaint. But, the Board can analyze the various
`
`positions and determine which is more credible.
`
`III. The Board should not exclude the IEEE exhibits
`
`With respect to the IEEE exhibits (Exs. 2040-2046) and the Camp Decl. (Ex.
`
`2048), Petitioners object on authentication, hearsay, and relevance – objections
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`they timely asserted in Paper 26. Nevertheless, the objections are meritless.
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`On authentication, paragraphs 4-11 of Ex. 2048 have sufficient support
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`because the declarant Clyde Camp, has personal knowledge of the matters stated in
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`those paragraphs. In his declaration, Mr. Camp avers that he makes his declaration
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`“on personal knowledge.” (Ex. 2048, ¶1.) In addition, in paragraph 2, Mr. Camp
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`provides details of his background and involvement with the IEEE that support his
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`knowledge of the facts stated in his declaration. In paragraph 3, Mr. Camp avers: “I
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`Atty. Dkt. No.: CHRMC0111IPR1
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`was personally aware that this work [in the 802.3af Committee] was being done
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`and I am familiar with the record keeping system and policies used by IEEE 802
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`LAN/MAN Standards Committee including 802.3af.” Moreover, the documents
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`themselves, and the links to them on the IEEE 802.af website are further “evidence
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`sufficient to support a finding that the item[s] [are] what [Chrimar] claims [they
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`are].” Fed. R. Evid. 901. Chrimar provided further evidence of authenticity via the
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`declaration of Steven Johnson (Ex. 2054), which establishes that the documents
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`were indexed and captured by the Internet Archive about the time they were
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`created. This is ample evidence to establish the authenticity of the documents,
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`demonstrated by Petitioners’ own actions: (1) Petitioners did not depose Messrs.
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`Camp nor Johnson and failed to present any contrary evidence, and (2) Petitioners
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`included similar IEEE 802.3af meeting records with their Reply (Exs. 1035-1042)
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`obtained from the same source as Chrimar’s exhibits and relying on that source as
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`authenticity for their exhibits. Similar IEEE documents were deemed admissible in
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`previous PTAB proceedings with less supporting evidence. Valeo North America,
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`Inc. v. Magna Electronics, Inc., IPR2014-01204, Paper No. 52 at 13-14 (Jan. 25,
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`2016).
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`Regarding hearsay, these documents have relevance to this matters whether
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`true or not. These exhibits confirm that the IEEE committee recorded skepticism
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`of experts in the art. Regardless of whether the statements were truthful, the record
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`shows they were made. Moreover, even if used as hearsay, an expert may rely on
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`hearsay evidence especially of the type presented – IEEE Committee meeting
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`records. Interwoven, Inc. v. Vertical Comp. Sys., CV 10-04645 RS, 2013 WL
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`3786633 at *7 (N.D. Cal. July 18, 2013) (“Experts are, however, permitted to rely
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`on hearsay evidence in coming to their conclusions, so long as an expert in the
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`field would reasonably rely on that information.”)
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`On relevance, these exhibits are highly relevant. Petitioner seeks exclusion
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`because these records are damaging to their Petition. At the time of his first
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`declaration, Mr. Crayford was aware of the IEEE 802.3af PoE committee. (Ex.
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`2039 at 187:24-188:25.) Petitioners have the burden of proof on obviousness,
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`including all the Graham factors, Plantronics, Inc. v. Aliph, Inc., 724 F.3d 1343,
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`1353 (Fed. Cir. 2013) (“The burden of proof lies with the challenger, and this court
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`has rejected any formal burden-shifting framework in evaluating the four Graham
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`factors.”), and “expressions of surprise or skepticism by experts and those skilled
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`in the art” is one of the factors (Ex. 1002, ¶30; compare with Pet., which omits
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`Graham). Nonetheless, neither Mr. Crayford nor the Petition addressed the
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`skepticism committee members expressed about the suggestion to apply power to
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`the Ethernet signal-carrying conductors (e.g., Exs. 2040-2046) as late as 1999-
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`2000.
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`Petitioners now claim that these exhibits do not pertain to any of the
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`challenged claims or limitations. (Motion at 13.) To the contrary, Petitioners
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`claim that their combination of references would have been obvious to those
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`skilled in the art. For example, the Petition seeks to add Bloch’s telephony-based
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`phantom powering to IEEE standards as its obviousness combination. The IEEE
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`802.3af committee was looking at phantom powering proposals and applying
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`power to the signal pairs of conductors (as proposed in Petition Grounds 1 and 2)
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`was met with great skepticism by the experts. This real world, objective evidence
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`is perhaps the most highly relevant evidence of non-obviousness that can be
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`presented.
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`IV. Exhibit 2047 is proper
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`Exhibit 2047 provides the only unbiased definition of “protocol” in the
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`record. Petitioners object on authentication and hearsay grounds. For
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`authentication, Dr. Madisetti (at ¶104) identified the webpage from which he
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`obtained Exhibit 2047. Exhibit 2047 is a true and correct copy of the content from
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`that cited website. Moreover, the IETF.org is a highly respected and reliable source
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`of information.
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`Furthermore, contrary to Petitioners’ claims, Exhibit 2047 is not hearsay any
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`more than a dictionary is hearsay for its definitions. Exhibit 2047 is not being
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`offered for the truth of the matter asserted. Rather, Exhibit 2047 merely provides a
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`definition of the term “protocol” from an authoritative technical source, the weight
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`of which can be decided by the Board when construing the term “protocol.”
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`Moreover, Dr. Madisetti can rely on hearsay. Interwoven at *7. Finally, Exhibit
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`2047 is relevant because it provides additional context of what the term “protocol”
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`means in the context of the computer networking field and the Chrimar patent.
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`V. Exhibit 2049 is Relevant
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`Petitioners cite no support for their arguments that this Exhibit is irrelevant
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`and requires exclusion. On its face, U.S. Patent No. 5,995,392 (Ex. 2049) indicates
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`that during the relevant timeframe of the ‘838 patent, inventors in the relevant field
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`were writing – and filing patents – about thermistors that could protect circuits
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`without interfering with normal device power-up. This is relevant because it
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`refutes Petitioners’ reason to combine Hunter and Bulan, i.e., that the thermistors
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`described in Hunter are inferior to the Bulan current limiting circuit. Finally,
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`contrary to Petitioners’ objections, the Board is fully capable of weighing the
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`relevance of Exhibit 2049 without the concern of unfair prejudice or confusion of
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`the issues.
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`VI. Exhibits 2050 and 2054 are relevant to Mr. Crayford’s testimony
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`On July 21, 2017, Chrimar took the Second Deposition of Mr. Crayford.
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`During the deposition, Mr. Crayford was presented with Exhibits 2050 and 2054,
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`which are relevant to the cross-examination of Mr. Crayford and the veracity of his
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`testimony. For example, Mr. Crayford asserts that Hunter discloses delivering
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`phantom power in isoEthernet’s 10Base-T mode. Yet, Exhibit 2050, an IEEE
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`Atty. Dkt. No.: CHRMC0111IPR1
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`802.9f isoEthernet draft specification, states unequivocally, that as late as 1999, it
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`was not possible to phantom-power isoEthernet’s 10Base-T mode. Similarly,
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`Exhibit 2054 confirms that the CAT-3 and CAT-5 cable specification required 4
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`pairs of conductors, not two as Mr. Crayford claimed.
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`VII. Conclusion
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`For the reasons stated above, Petitioners motion to exclude should be denied
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`in its entirety.
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`
`Dated: August 11, 2017
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`
`
`
`
` /Marc Lorelli/
`Marc Lorelli (Reg. No. 43,759)
`Thomas A. Lewry (Reg. No. 30,770)
`Frank A. Angileri (Reg. No. 36,733)
`Christopher C. Smith (Reg. No. 59,669)
`Brooks Kushman P.C.
`1000 Town Center, 22nd Floor
`Southfield, MI 48075
`(248) 358-4400
`
`Richard W. Hoffmann (Reg. No. 33,711)
`Reising Ethington PC
`755 West Big Beaver Rd., Suite 1850
`Troy, Michigan 48084
`Attorneys for Patent Owner
`
`
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`Certificate of Service
`
`On August 11, 2017, a copy of this PATENT OWNER’S OPPOSITION
`TO PETITIONERS’ MOTION TO EXCLUDE has been served on Petitioner’s
`counsel via electronic mail at the email addresses shown below:
`
`
`Lead Counsel & Back-up Counsel for Juniper
`Talin Gordnia, Reg. No. 76,214
`Michael Fleming, Reg. No. 67,933
`Jonathan Kagan, pro hac vice
`IRELL & MANELLA, LLP
`1800 Avenue of the Stars, Suite 900
`IRELL & MANELLA, LLP
`Los Angeles, CA 90067
`1800 Avenue of the Stars, Suite 900
`Juniper-ChrimarIPR@irell.com
`Los Angeles, CA 90067
`Juniper-ChrimarIPR@irell.com
`
`Nima Hefazi Reg. No. 63,658
`IRELL & MANELLA, LLP
`840 Newport Center Drive, Suite 400
`Newport Beach, CA 92660
`Juniper-ChrimarIPR@irell.com
`
`Lead Counsel & Back up Counsel for Ruckus Wireless, Inc., Brocade
`Communication Systems, Inc., & Netgear, Inc.
`Joseph Powers (Reg. No. 47,006)
`Christopher Tyson (Reg. No. 63,850)
`Duane Morris LLP
`Duane Morris LLP
`30 South 17th Street
`505 9th St. NW, Ste 1000
`Philadelphia PA 19103-4196
`Washington DC 20004
`JAPowers@duanemorris.com
`CJTyson@duanemorris.com
`
`
`Matthew S. Yungwirth
`DUANE MORRIS LLP
`1075 Peachtree Street, NE, Suite 2000
`Atlanta, Georgia 30309
`msyungwirt