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 REPLY IN SUPPORT OF ITS
`MOTION TO EXCLUDE EVIDENCE
`
`
`
`
`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.
`
`
`
`
`
`______________
`
`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 REPLY IN SUPPORT OF ITS
`MOTION TO EXCLUDE EVIDENCE
`
`
`
`
`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
`
`A.
`B.
`
`Exhibits 1021-28, 1031 and 1035 are inadmissible hearsay ................. 1
`Petitioners’ late exhibits should not be admitted .................................. 3
`1.
`Exhibit 1032 ................................................................................ 4
`2.
`Exhibits 1025-1028 ..................................................................... 5
`3.
`Exhibit 1034 ................................................................................ 5
`
`Certificate of Service ................................................................................................. 7
`
`Certificate of Compliance Pursuant to 37 C.F.R. § 42.24 ......................................... 8
`
`
`
`
`
`i
`
`
`
`Case No.: IPR2016-01397
`Patent No.: 9,019,838
`
`
`Atty. Dkt. No.: CHRMC0111IPR1
`
`Table of Authorities
`
`Cases
`
`Hendricks v. Ford Motor Co.,
`
`Case No. 4:12cv71, 2012 WL 7958760 (E.D. Tex. Oct. 15, 2012) ................ 3
`
`
`
`Rules
`
`Office Patent Trial Practice Guide,
`
`77 Fed. Reg. 157, 48767 (Aug. 14, 2012) ....................................................... 4
`
`Fed. R. Evid. 803 ...................................................................................................1, 2
`
`
`
`ii
`
`
`
`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
`
`
`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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`Case No.: IPR2016-01397
`Patent No.: 9,019,838
`
`
`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
`2054 Declaration of Steven Johnson
`2055 Crayford 7-21-17 Deposition
`Transcript
`
`Atty. Dkt. No.: CHRMC0111IPR1
`
`Date
`May 1993
`
`Identifier
`Krol RFC
`
`
`
`
`
`
`
`
`
`Camp Decl.
`
`
`
`the ‘142 patent
`
`
`
`
`
`
`
`
`
`v
`
`
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`Case No.: IPR2016-01397
`Patent No.: 9,019,838
`
`
`Atty. Dkt. No.: CHRMC0111IPR1
`
`For the reasons discussed below, Chrimar’s motion to exclude should be
`
`granted.
`
`A. Exhibits 1021-28, 1031 and 1035 are inadmissible hearsay
`
`Petitioners contend that Exhibits 1031 and 1035 fall under the hearsay
`
`exception in Fed.R.Evid. 803(6) because they are commercial publications
`
`published in the “ordinary course of business activity.” For Exhibits 1031 and 1035
`
`to qualify for the exception under Fed.R.Evid. 803(6), Petitioners must establish:
`
`(A) the record was made at or near the time by — or from information
`
`transmitted by — someone with knowledge;
`
`(B) the record was kept in the course of a regularly conducted
`
`activity of a business, organization, occupation, or calling, whether or
`
`not for profit;
`
`(C) making the record was a regular practice of that activity;
`
`(D) all these conditions are shown by the testimony of the custodian
`
`or another qualified witness, or by a certification that complies with
`
`Rule 902(11) or (12) or with a statute permitting certification.
`
`(E) the opponent does not show that the source of information or the
`
`method or circumstances of preparation
`
`indicate a
`
`lack of
`
`trustworthiness.
`
`Fed. R. Evid. 803(6) (emphasis added). Here, Petitioners have not established,
`
`through a competent witness, that Exhibits 1031 and 1035 were kept in the
`
`ordinary course of a regularly conducted activity of business.
`
`Indeed, Petitioners only supporting evidence is the third declaration of Ian
`
`1
`
`
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`Case No.: IPR2016-01397
`Patent No.: 9,019,838
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`Crayford (Ex. 1048)—Petitioners’ expert witness. However, Mr. Crayford does not
`
`Atty. Dkt. No.: CHRMC0111IPR1
`
`qualify as “someone with knowledge.” For Exhibit 1031, Mr. Crayford merely
`
`relies on web-captures from the Internet Archive website, which proves nothing
`
`about whether Ex. 1031 was a record of the regularly conducted activity for Belden
`
`Wire & Cable Company (the author of the document). (Ex. 1048, at ¶26.) For
`
`Exhibit 1035, Mr. Crayford relies on statements from avaya.com, and the Exhibit
`
`itself, to establish when Exhibit 1035 became publicly available. (Id., at ¶28.)
`
`Therefore, at least this date information is being offered for the truth of the matter
`
`asserted and is hearsay. But again, Mr. Crayford does not establish that Exhibit
`
`1035 or the avaya.com website fall under the business activity exception of Fed. R.
`
`Evid. 803(6). And for both Exhibits 1031 and 1035, Mr. Crayford never establishes
`
`that he has personal knowledge about the exhibits, was provided information from
`
`someone with personal knowledge about the exhibits, or bases his opinion on
`
`information from a custodian of those Exhibits, to qualify as “someone with
`
`knowledge,” as required by Fed. R. Evid. 803(6).
`
`For Exhibits 1021-1024, Mr. Crayford cites to his own personal copies of
`
`the exhibits and various websites from which he claims to have located versions of
`
`the exhibits. However, Mr. Crayford never explains why these exhibits—including
`
`the dates on the exhibits—are not inadmissible hearsay. (Ex. 1048, at ¶¶9-13.)
`
`Indeed, Exhibits 1021-1024 are being offered for the truth of the matter asserted
`
`2
`
`
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`Case No.: IPR2016-01397
`Patent No.: 9,019,838
`
`from a substantive standpoint as well as for the truth of the dates contained on
`
`Atty. Dkt. No.: CHRMC0111IPR1
`
`them. The fact that Mr. Crayford has copies of versions of the exhibits does not
`
`attest to their reliability or establish that a hearsay exception applies.
`
`Finally, Exhibits 1025-1028 are patents. And “[i]t is settled law that while
`
`patents are hearsay, the patents themselves fall under the public records exception to
`
`the hearsay rule. . . . The statements made in the patents, however, must also fall
`
`under a hearsay exception” Hendricks v. Ford Motor Co., Case No. 4:12cv71, 2012
`
`WL 7958760, at *1 (E.D. Tex. Oct. 15, 2012). In its Response, Chrimar explained,
`
`“Power-over-Ethernet (‘PoE’) did not exist in 1997.” (Res. at 8.) And in their Reply,
`
`Petitioners rely on Exhibits 1025-1028 as evidence that operating PoE equipment
`
`did exist at that time. (Reply at 6-7.) The information from Exhibits 1025-1028
`
`relied on by Petitioners is hearsay, and Petitioners identify no hearsay exception to
`
`overcome the objection. Exhibits 1025-1028 should be excluded.
`
`B.
`
`Petitioners’ late exhibits should not be admitted
`
`Rather than focus on the merits of Chrimar’s arguments, Petitioners spend
`
`significant time arguing about whether a tardy evidence objection is a proper basis
`
`to exclude evidence. But the PTAB rules are clear: late evidence is not proper and
`
`must be excluded. See, e.g., Office Patent Trial Practice Guide, 77 Fed. Reg. 157,
`
`48767 (Aug. 14, 2012) (“[A] reply that raises a new issue or belatedly presents
`
`evidence will not be considered and may be returned” as “[t]he Board will not
`
`3
`
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`Case No.: IPR2016-01397
`Patent No.: 9,019,838
`
`attempt to sort proper from improper portions of the reply”).
`
`Atty. Dkt. No.: CHRMC0111IPR1
`
`Petitioners spend the remainder of their brief arguing the merits of the case
`
`and whether certain evidence was offered to bolster the petition or respond to
`
`Chrimar’s arguments. But as shown in the examples below, Petitioners cited several
`
`new exhibits, which were late and used to improperly supplement the Petition.
`
`1.
`
`Exhibit 1032
`
`In their response, Petitioners try to mask their use of the isoEthernet standard
`
`(Exhibit 1032) as merely a response to Dr. Madisetti’s opinions about the
`
`shortcomings of the disclosure in Hunter. But Petitioners’ Reply tells a different
`
`story. There, Petitioners repeatedly reference Exhibit 1032 to further broaden what
`
`they contend is the claimed “Ethernet” to further shoehorn the disclosure of Hunter
`
`into their analysis. Petitioners use Exhibit 1032 to argue for the first time that: (1)
`
`Hunter’s disclosure of isoEthernet also teaches Ethernet, and therefore 10Base-T
`
`(Reply, at 15), and (2) 10Base-T Ethernet terminates at the Hunter ISTE (the
`
`“terminal device” identified in Petitioners’ theory) (Reply at 16-17). This is not
`
`just use of Exhibit 1032 to respond to Chrimar’s response, this is use of the
`
`isoEthernet standard to supplement Petitioners’ deficient argument in their Petition
`
`that Hunter discloses Ethernet. Petitioners’ late citation of Ex. 1032 prevented
`
`Chrimar from presenting the complete story about the isoEthernet standard—
`
`namely that at the relevant time of the Chrimar invention isoEthernet did not
`
`4
`
`
`
`Case No.: IPR2016-01397
`Patent No.: 9,019,838
`
`support phantom powering of Ethernet. (Paper 44 at ¶4.)
`
`Atty. Dkt. No.: CHRMC0111IPR1
`
`2.
`
`Exhibits 1025-1028
`
`Petitioners further added late Exhibits 1025-1028 to bolster their argument
`
`that Ethernet phantom powering was known in the art at the time of the Chrimar
`
`invention. (Reply, at 7, 14.) Again, this evidence is being used to improperly
`
`supplement Petitioners’ original Ground—likely because neither of Petitioners’
`
`Grounds include even a single reference that discloses power over Ethernet.
`
`Petitioners’ late supplementation is especially prejudicial because, had Chrimar been
`
`provided the opportunity to respond, Chrimar could have submitted evidence that
`
`the Chrimar invention was conceived before the patents of Exhibits 1027-1028.
`
`3.
`
`Exhibit 1034
`
`Exhibit 1034 was created by Dr. Madisetti under duress (and under protest)
`
`due to improper questioning about Figure 4 of the Chrimar patents. (Ex. 1020 at
`
`243:19-245:12, 246:9-247:16, 251:23-53:11, 259:17-263:14, 286:15-288:13,
`
`289:12-293:16, 307:14-314:9.) Dr. Madisetti stated repeatedly that he had offered
`
`no opinions about Figure 4, and neither the Petition nor the Response relies on
`
`Figure 4 for any argument. (Id.) Thus, Exhibit 1034 should be excluded.
`
`
`
`
`
`
`
`
`
`Dated: August 18, 2017
`
`
`
`
`
`Respectfully submitted,
`
`
` /Christopher C. Smith/
`Christopher C. Smith (Reg. No. 59,669)
`Frank A. Angileri (Reg. No. 36,733)
`Thomas A. Lewry (Reg. No. 30,770)
`Marc Lorelli (Reg. No. 43,759)
`
`5
`
`
`
`Case No.: IPR2016-01397
`Patent No.: 9,019,838
`
`
`Atty. Dkt. No.: CHRMC0111IPR1
`
`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
`248.786.0163
`
`Attorneys for Patent Owner
`
`
`
`
`
`6
`
`
`
`Case No.: IPR2016-01397
`Patent No.: 9,019,838
`
`
`Atty. Dkt. No.: CHRMC0111IPR1
`
`Certificate of Service
`
`On August 18, 2017, a copy of this PATENT OWNER’S REPLY IN
`SUPPORT OF ITS MOTION TO EXCLUDE EVIDENCE 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
`msyungwirth@duanemorris.com
`
`
`
`
`
` /Christopher C. Smith/
`Christopher C. Smith (Reg. No. 59,669)
`Brooks Kushman P.C.
`1000 Town Center, 22nd Floor
`Southfield, MI 48075
`Attorneys for Patent Owner
`
`7
`
`
`
`
`
`Case No.: IPR2016-01397
`Patent No.: 9,019,838
`
`
`Atty. Dkt. No.: CHRMC0111IPR1
`
`Certificate of Compliance Pursuant to 37 C.F.R. § 42.24
`
`
`
`
`This paper complies with the type-volume limitation of 37 C.F.R. § 42.24.
`
`The paper contains no more than 5 pages, excluding the parts of the paper
`
`exempted by §42.24(a).
`
`This paper also complies with the typeface requirements of 37 C.F.R.
`
`§ 42.6(a)(ii) and the type style requirements of § 42.6(a)(iii) & (iv).
`
`
`Dated: August 18, 2017
`
`
`
`
`Respectfully submitted,
`
`
` /Christopher C. Smith/
`Christopher C. Smith (Reg. No. 59,669)
`Frank A. Angileri (Reg. No. 36,733)
`Thomas A. Lewry (Reg. No. 30,770)
`Marc Lorelli (Reg. No. 43,759)
`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
`248.786.0163
`
`Attorneys for Patent Owner
`
`
`8
`
`
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