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` Paper ____
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` Date filed: July 11, 2018
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`Filed on behalf of: Nichia Corp.
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`By: Martin M. Zoltick, Lead Counsel
`Robert P. Parker, Back-up Counsel
`Derek F. Dahlgren, Back-up Counsel
`Michael H. Jones, Back-up Counsel
`Mark T. Rawls, Back-up Counsel
`ROTHWELL, FIGG, ERNST & MANBECK, P.C.
`607 14th Street, N.W., Suite 800
`Washington, DC 20005
`Phone: 202-783-6040
`Facsimile: 202-783-6031
`Emails: mzoltick@rfem.com
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` rparker@rfem.com
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` ddahlgren@rfem.com
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` mjones@rfem.com
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` mrawls@rfem.com
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
` VIZIO, INC.,
`Petitioner,
`
`v.
`
`NICHIA CORP.,
`Patent Owner.
`_______________
`
`Case IPR2018-00386
`Patent 9,490,411
`_______________
`
`PATENT OWNER’S OBJECTIONS TO EVIDENCE FILED
`WITH PETITION OF VIZIO, INC. PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`
`
`Case IPR2018-00386
`Patent 9,490,411
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), Patent Owner Nichia Corp. (“Patent
`
`Owner”) hereby files the following objections to evidence filed in support of
`
`Petitioner Vizio, Inc.’s (“Petitioner”) Petition for Inter Partes Review of U.S.
`
`Patent No. 9,490,411. Pursuant to 37 C.F.R. § 42.62, Patent Owner’s objections
`
`below apply the Federal Rules of Evidence (“FRE”) and the Office Trial Practice
`
`Guide, 77 Fed. Reg. 48,756-73 (Aug. 14, 2012).
`
`Patent Owner’s objections and the basis for each objection are below.
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`1
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`
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`Evidence Submitted by Petitioner
`Ex. 1003
`Declaration of Dr. Stanley R. Shanfield
`
`Case IPR2018-00386
`Patent 9,490,411
`
`Patent Owner’s Objections
`Fed. R. Evid. 701/702/703
`(Inadmissible as unreliable and
`improper opinion and expert
`testimony): Declarant’s testimony with
`reference to Ex. 1009 (Japanese Patent
`Publication No. JP2006-093697 (“Park
`’697”) with Certified English
`Translation) is not reliable, and any
`opinion and/or expert testimony of
`Declarant based thereon is not based on
`sufficient facts or data; has not applied
`reliable principles and methods; and/or
`has not reliably applied such principles
`and methods to the facts of the case. In
`addition, Declarant is not qualified as an
`expert, and lacks the knowledge, skill,
`experience, training, or education to
`testify as an expert in a manner that is
`helpful to the Board. Declarant has
`testified to and relied on an improper
`translation.
`
`Fed. R. Evid. 401/402/403
`(Inadmissible as irrelevant, unfairly
`prejudicial, tending to confuse the
`issues, and a waste of time): The
`exhibit is irrelevant under Fed. R. Evid.
`401 and thus inadmissible under Fed. R.
`Evid. 402. Declarant is not qualified as
`an expert. To the extent this exhibit has
`any marginal relevance, it should be
`excluded under FRE 403 as unfairly
`prejudicial, tending to confuse the issues,
`and/or a waste of time.
`
`
`
`2
`
`
`
`Evidence Submitted by Petitioner
`Ex. 1009
`Japanese Patent Publication No.
`JP2006-093697 (“Park ‘697”) with
`Certified English Translation
`
`Case IPR2018-00386
`Patent 9,490,411
`
`Patent Owner’s Objections
`Fed. R. Evid. 901 (Inadmissible as
`lacking authenticity): Petitioner has not
`produced evidence sufficient to support a
`finding that the exhibit is what Petitioner
`claims.
`
`Fed. R. Evid. 802 (Inadmissible as
`improper hearsay): The exhibit is
`inadmissible hearsay if offered to prove
`the truth of any matter allegedly asserted
`therein, including, without limitation,
`any alleged translation.
`
`Fed. R. Evid. 401/402/403
`(Inadmissible as irrelevant, unfairly
`prejudicial, tending to confuse the
`issues, and a waste of time): The
`exhibit is irrelevant under Fed. R. Evid.
`401 and thus inadmissible under Fed. R.
`Evid. 402. To the extent this exhibit has
`any marginal relevance, it should be
`excluded under FRE 403 as unfairly
`prejudicial, tending to confuse the issues,
`and/or a waste of time. The exhibit
`includes an improper translation and is
`unreliable.
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`3
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`
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`Evidence Submitted by Petitioner
`Ex. 1014
`Declaration of Mary Oros in Support of
`Petition for Inter Partes Review of U.S.
`Patent No. 9,490,411
`
`Case IPR2018-00386
`Patent 9,490,411
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`Patent Owner’s Objections
`Fed. R. Evid. 701/702/703
`(Inadmissible as unreliable and
`improper opinion and expert
`testimony): Declarant’s testimony with
`reference to Ex. 1009 (Japanese Patent
`Publication No. JP2006-093697 (“Park
`‘697”) with Certified English
`Translation) is not reliable, and any
`opinion and/or expert testimony of
`Declarant based thereon is not based on
`sufficient facts or data; has not applied
`reliable principles and methods; and/or
`has not reliably applied such principles
`and methods to the facts of the case. In
`addition, Declarant is not qualified as an
`expert, and lacks the knowledge, skill,
`experience, training, or education to
`testify as an expert in a manner that is
`helpful to the Board. Declarant has
`testified to and relied on an improper
`translation.
`
`Fed. R. Evid. 401/402/403
`(Inadmissible as irrelevant, unfairly
`prejudicial, tending to confuse the
`issues, and a waste of time): The
`exhibit is irrelevant under Fed. R. Evid.
`401 and thus inadmissible under Fed. R.
`Evid. 402. Declarant is not qualified as
`an expert. To the extent this exhibit has
`any marginal relevance, it should be
`excluded under FRE 403 as unfairly
`prejudicial, tending to confuse the issues,
`and/or a waste of time.
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`4
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`
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`Case IPR2018-00386
`Patent 9,490,411
`
`Evidence Submitted by Petitioner
`Exs. 1012 and 1013
`Claim Construction Briefs from Nichia
`Corp. v. VIZIO, Inc., No. 2:16-cv-
`01453-JRG (E.D. Tex.)
`
`
`Patent Owner’s Objections
`Fed. R. Evid. 802 (Inadmissible as
`improper hearsay): The exhibits may
`be inadmissible hearsay if offered to
`prove the truth of any matter allegedly
`asserted therein.
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`
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`These objections are timely served within ten business days of the Board’s
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`June 26, 2018 Institution Decision (Paper 15).
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`Respectfully submitted,
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`By:
`
`Date: July 11, 2018
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`
`/ Martin M. Zoltick /
`Martin M. Zoltick, Reg. No. 35,745
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`ROTHWELL, FIGG, ERNST &
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` MANBECK, P.C.
`607 14th Street, N.W., Suite 800
`Washington, DC 20005
`Phone: 202-783-6040
`Facsimile: 202-783-6031
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`Counsel for Patent Owner
`Nichia Corp.
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`5
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`Case IPR2018-00386
`Patent 9,490,411
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 11th day of July, 2018, a true and correct copy of
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`the foregoing PATENT OWNER’S OBJECTIONS TO EVIDENCE FILED
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`WITH PETITION OF VIZIO, INC. PURSUANT TO 37 C.F.R. § 42.64(b)(1)
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`was served, via electronic mail, upon the following counsel of record for Petitioner
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`Vizio, Inc.:
`
`Gabrielle E. Higgins
`James L. Davis, Jr.
`Christopher M. Bonny
`ROPES & GRAY LLP
`1900 University Avenue, 6th Floor
`East Palo Alto, CA 94303-2284
`Phone: 650-617-4000
`Facsimile: 650-566-4090
`Emails: Gabrielle.Higgins@ropesgray.com
`James.L.Davis@ropesgray.com
`Christopher.Bonny@ropesgray.com
`
`
`
`/ Erik van Leeuwen /
`Erik van Leeuwen
`Litigation Operations Coordinator
`Rothwell, Figg, Ernst & Manbeck, P.C.
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`6
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