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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`Juniper Networks, Inc., Ruckus Wireless, Inc., Brocade Communication
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`Systems, Inc. and Netgear, Inc.,
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`Petitioners
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`v.
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`Chrimar Systems, Inc.,
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`Patent Owner
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`Case No. IPR2016-01397
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`U.S. Patent No. 9,109,838 B2
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`PETITIONERS’ REPLY IN SUPPORT OF THEIR MOTION TO EXCLUDE
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`Mail Stop Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-145
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`Petitioners’ Reply in Support of Their Motion to Exclude
`IPR2016-01397
`U.S. Patent No. 9,019,838
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`TABLE OF CONTENTS
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`I.
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`THE MADISETTI DECLARATION (EXHIBIT 2038) .............................. 1
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`Page
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`A.
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`B.
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`Chrimar Does Not Refute That Dr. Madisetti’s Opinions,
`Which Are Unsupported and Contrary to the Evidence,
`Demonstrate His Unreliability as an Expert for the Purpose
`of This IPR ......................................................................................... 1
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`Petitioners’ Objections Put Chrimar on Sufficient Notice
`of Its Failure to Comply with the Federal Rules of
`Evidence ............................................................................................. 2
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`CHRIMAR HAS NOT OVERCOME THE ARGUMENTS IN
`THE MOTION TO EXCLUDE FOR EXHIBITS 2040-2050,
`2054 .............................................................................................................. 5
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`- i -
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`II.
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`Petitioners’ Reply in Support of Their Motion to Exclude
`IPR2016-01397
`U.S. Patent No. 9,019,838
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`TABLE OF AUTHORITIES
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` Page(s)
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`Cases
`Shimano Inc. v. Globeride, Inc.,
`No. IPR2015-00273, Paper 40 (P.T.A.B. June 16, 2016) .................................... 4
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`Summit 6, LLC v. Samsung Elecs. Co.,
`802 F.3d 1283 (Fed. Cir. 2015) ............................................................................ 3
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`Rules and Regulations
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`37 C.F.R. § 42.62(a) ................................................................................................... 1
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`37 C.F.R. § 42.64(b) .......................................................................................... 1, 3, 4
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`37 C.F.R. § 42.65 ................................................................................................... 1, 4
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`37 C.F.R. § 42.123 ..................................................................................................... 5
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`F.R.E. 702 ...................................................................................................... 1, 3, 4, 5
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`F.R.E. 703 .......................................................................................................... 1, 4, 5
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`Petitioners’ Reply in Support of Their Motion to Exclude
`IPR2016-01397
`U.S. Patent No. 9,019,838
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`I.
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`THE MADISETTI DECLARATION (EXHIBIT 2038)
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`Dr. Madisetti’s opinions are premised on speculation and a fundamental
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`disregard for the evidence in this IPR (e.g., time of invention, availability of
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`unused pairs, isoEthernet standard). Petitioners’ Motion to Exclude (Paper 46),
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`therefore, argued that Dr. Madisetti’s declaration (Ex. 2038) should be excluded
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`because it falls short of the mandates of F.R.E. 702, 703, and 37 C.F.R. § 42.65.
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`Rather than address these arguments raised by the Petitioners’ Motion, Chrimar’s
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`Opposition (Paper 50) argues that: (1) F.R.E. 702 and 703, as interpreted by the
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`Supreme Court in Daubert and Kumho Tire, do not apply in IPRs such that the
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`Board should admit clearly unreliable opinions; and (2) 37 C.F.R. § 42.64(b)
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`requires a complete analysis of a patent owner’s expert declaration in the five days
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`that a petitioner has to submit objections following the filing of the patent owner’s
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`response. Neither argument is supported by precedent or common sense.
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`A. Chrimar Does Not Refute That Dr. Madisetti’s Opinions, Which
`Are Unsupported and Contrary to the Evidence, Demonstrate His
`Unreliability as an Expert for the Purpose of This IPR
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`Although Chrimar is correct that it is “within the Board’s discretion to
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`assign the appropriate weight to evidence,” the Federal Rules of Evidence (F.R.E.),
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`as applied in Daubert and Kumho Tire, still do apply to IPRs. 37 C.F.R.
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`§ 42.62(a). At some point, when a purported expert’s opinions are so lacking in
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`Petitioners’ Reply in Support of Their Motion to Exclude
`IPR2016-01397
`U.S. Patent No. 9,019,838
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`support, so laden with errors, and so clearly based on unreliable reasoning and
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`methodology, their exclusion does become the appropriate remedy. Petitioners
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`maintain that the breadth of errors in Dr. Madisetti’s declaration reaches this point.
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`Petitioners’ Motion specifically identifies a host of examples of Dr. Madisetti’s
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`factual misunderstandings and conclusory, unsupported statements to demonstrate
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`that his opinions cannot be accepted as reliable, including the following examples:
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` “At the time of Chrimar’s invention (1997)” (Motion, 2);
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` “Power over Ethernet (‘POE’) did not exist in 1997” (id., 3);
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` “I considered my opinions from the viewpoint of one of ordinary skill in
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`the art in the ‘97 time frame” (Ex. 1020, 196:18-197:3);
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` “CAT-3 and CAT-5 are cable standards that require cables with eight
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`conductors twisted into four pairs” (Motion, 5);
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` “[U]nused wires were readily available in Ethernet installations” (id.):
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` “Q. Can’t you use 25 pair cable for 10BASE-T? A. That was not the
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`case.” (id., 6 (citing Ex. 1020));
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` “isoEthernet used ISDN signals, not Ethernet signals, to transmit data”
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`and (id., 6-7 (emphasis added)); and
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` “isoEthernet connections [] carried ISDN (not Ethernet) traffic” (id., 7).
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`In its Opposition, Chrimar does not dispute that Dr. Madisetti failed to
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`Petitioners’ Reply in Support of Their Motion to Exclude
`IPR2016-01397
`U.S. Patent No. 9,019,838
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`provide necessary underlying facts, data, or evidence for any of the above
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`statements. Instead, Chrimar alleges that Dr. Madisetti relied on his “education,
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`experience, and training,” and that while he allegedly had access to purportedly
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`supporting evidence for various assertions at the time Chrimar filed its Response
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`(April 4, 2017), he withheld that alleged support. (Opposition, 3-5, 14-15).
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`By presenting Dr. Madisetti as an expert and relying on his opinions,
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`Chrimar and Dr. Madisetti were required by 37 CFR § 42.65 and F.R.E. 702 to
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`disclose the facts and data underlying his opinions and to limit his opinions to
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`those that reliably apply scientific, technical, or specialized knowledge to the facts
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`of this case. Dr. Madisetti’s aforementioned errors confirm that he did not do so.
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`Accordingly, Dr. Madisetti’s testimony is unreliable, irrelevant, and prejudicial,
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`and its exclusion is appropriate. See Summit 6, LLC v. Samsung Elecs. Co., 802
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`F.3d 1283, 1295-96 (Fed. Cir. 2015) (evidence should be excluded if based upon
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`“reasoning or methodology [that] is not sufficiently tied to the facts of the case.”).
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`B.
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`Petitioners’ Objections Put Chrimar on Sufficient Notice of Its
`Failure to Comply with the Federal Rules of Evidence
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`Chrimar’s “timeliness” argument is unrelated to the merits of Petitioners’
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`Motion. Rather, it is based on Chrimar’s optimism that the Board will impose an
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`unreasonable, if not impossible, burden regarding the particularity requirement of
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`37 C.F.R. § 42.64(b)(1). It is indisputable, however, that Chrimar bears the burden
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`Petitioners’ Reply in Support of Their Motion to Exclude
`IPR2016-01397
`U.S. Patent No. 9,019,838
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`of complying with the F.R.E. and that Petitioners timely filed evidentiary
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`objections to each of the documents that are the subject of their Motion.
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`Petitioners’ objections individually identified the exhibits that were the subject of
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`their objections and, for each exhibit, identified and explained the particular
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`evidentiary grounds (i.e., the applicable F.R.E.) for their objections, and even
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`provided examples to illustrate Dr. Madisetti’s failure to comply with F.R.E. 702,
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`703, and 37 C.F.R. §42.65. Objections (Paper 26), 1-2. The Board has found that
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`such a disclosure satisfies the letter and intent of 37 C.F.R. §42.64(b)(1). See, e.g.,
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`Shimano Inc. v. Globeride, Inc., No. IPR2015-00273, Paper 40, 27 (P.T.A.B. June
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`16, 2016) (motion to exclude granted where objections “merely cit[ed] Federal
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`Rules of Evidence that were allegedly violated” and the evidentiary issues were
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`“glaring”). The cases Chrimar cites are distinguishable because the party whose
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`motion was denied had not filed any timely evidentiary objections.
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`In addition, Chrimar’s misinterpretation of 37 C.F.R. §42.64(b)(1) would
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`place an undue burden on Petitioners by effectively turning objections into a mini-
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`reply with a five-day deadline. It simply cannot be the case that, as Chrimar
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`argues, a petitioner must identify not only all of the evidentiary grounds for its
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`objections but also every substantive deficiency in the expert declaration, on a
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`paragraph-by-paragraph basis, within a five-day time period that is before the
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`Petitioners’ Reply in Support of Their Motion to Exclude
`IPR2016-01397
`U.S. Patent No. 9,019,838
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`petitioner has an opportunity to formulate its Reply. Among the clearest examples
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`of Chrimar’s misinterpretation is its statement that “Petitioners waived any ‘time of
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`invention’ objection.” Opposition, 3. There is no “time of invention” objection in
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`the Federal Rules of Evidence. There are, however, rules for the admissibility of
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`expert opinions (F.R.E. 702, 703), which Dr. Madisetti did not meet. Petitioners
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`specifically identified these evidentiary rules in their objections. Objections, 1-2.
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`II. CHRIMAR HAS NOT OVERCOME THE ARGUMENTS IN THE
`MOTION TO EXCLUDE FOR EXHIBITS 2040-2050, 2054
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`For the IEEE Exhibits 2040-2046, these remain irrelevant to this IPR
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`because Chrimar has not met its burden to show a nexus between these exhibits
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`and the claims of the ‘838 Patent. Likewise, Chrimar’s arguments regarding
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`Exhibits 2047-2049 do not refute the fact that these documents are not relevant to
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`any issue in this IPR, and also that Exhibit 2047 is hearsay and does not fall within
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`any exception. Regarding Exhibits 2050 and 2054, Chrimar does not, nor can it,
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`dispute that (1) Chrimar was denied permission to file these as exhibits with a sur-
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`reply, and (2) these documents are not referenced in any paper in this proceedings
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`outside of the briefing for Petitioners’ Motion to Exclude. Rather, Chrimar takes
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`advantage in its Opposition to discuss the substance of Exhibits 2050 and 2054 in
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`an attempt to inject them into the record despite the Board denying Chrimar
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`permission to file them with a sur-reply. 37 C.F.R. § 42.123; Paper 42.
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`Petitioners’ Reply in Support of Their Motion to Exclude
`IPR2016-01397
`U.S. Patent No. 9,019,838
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`Date: August 18, 2017
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`Respectfully submitted,
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`/s/ Talin Gordnia
`Talin Gordnia (Reg. No. 76,214)
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`Talin Gordnia, Reg. No. 76,214
`tgordnia@irell.com
`Michael Fleming, Reg. No. 67,933
`mfleming@irell.com
`Jonathan Kagan, pro hac vice
`jkagan@irell.com
`IRELL & MANELLA, LLP
`1800 Avenue of the Stars, Suite 900
`Los Angeles, CA 90067
`Telephone: (310) 277-1010
`Fax: (310) 203-7199
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`Nima Hefazi, Reg. No. 63,658
`nhefazi@irell.com
`IRELL & MANELLA, LLP
`840 Newport Center Drive, Suite 400
`Newport Beach, CA 92660
`Telephone: (949) 760-0991
`Fax: (949) 760-5200
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`Attorneys for Petitioner
`Juniper Networks, Inc.
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`Petitioners’ Reply in Support of Their Motion to Exclude
`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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`
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`the PETITIONERS’ REPLY IN SUPPORT OF THEIR MOTION TO
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`EXCLUDE is being served by electronic mail, as agreed to by the parties, the
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`same day as the filing of the above-identified document in the United States Patent
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`and Trademark Office/Patent Trial and Appeal Board, upon:
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`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, 22nd Floor
`Southfield, MI 48075
`CHRMC0111IPR1@brookskushman.com
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`
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`Richard W. Hoffman (Reg. No. 33,711)
`REISING ETHINGTON PC
`755 West Big Beaver Rd., Ste. 1850
`Troy, MI 48084
`Hoffman@reising.com
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`
` /Susan M. Langworthy/
` Susan M. Langworthy
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`August 18, 2017
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