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`IPR2018-00386
`U.S. Patent No. 9,490,411
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`VIZIO, INC.,
`Petitioner,
`
`v.
`
`NICHIA CORPORATION
`Patent Owner.
`
`______________________
`
`Case IPR2018-00386
`Patent 9,490,411
`______________________
`
`PETITIONER’S OBJECTIONS TO EXHIBITS SUBMITTED WITH
`PATENT OWNER’S RESPONSE
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`
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`
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`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioner VIZIO, Inc. (“Petitioner”)
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`IPR2018-00386
`U.S. Patent No. 9,490,411
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`
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`hereby submits the following objections to Patent Owner Nichia Corporation’s
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`(“Patent Owner”)’s Exhibits 2011, 2013, and 2014 and any reference to or reliance
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`on them, without limitation. Petitioner’s objections below apply the Federal Rules
`
`of Evidence (“F.R.E.”). These objections address evidentiary deficiencies in the
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`material submitted by Patent Owner with its Response on September 18, 2018.
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`To the extent Patent Owner does not cite these Exhibits or to paragraphs of
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`its witness declaration (Exhibit 2011) in its Patent Owner Response, permitting
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`reference to or reliance on these Exhibits and paragraphs in other submissions of
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`Patent Owner would be impermissible, misleading, irrelevant, and unfairly
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`prejudicial to Petitioner (F.R.E. 401, 402, 403). By failing to cite Exhibits or
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`paragraphs of witness declarations, Patent Owner has also waived any arguments
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`as to those Exhibits and portions of the declarations. See Paper 16 at 7; 37 C.F.R.
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`§ 42.6(a)(3).
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`I. Objections to Exhibit 2011, And Any Reference to/Reliance Thereon
`Grounds for objection: F.R.E. 702 (“Testimony by Expert Witnesses”);
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`F.R.E. 703 (“Bases of an Expert’s Opinion Testimony”); F.R.E. 602 (“Need for
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`Personal Knowledge”); F.R.E. 801, 802 (Impermissible Hearsay); F.R.E. 401
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`(“Test for Relevant Evidence”); F.R.E. 402 (“General Admissibility of Relevant
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`Evidence”); F.R.E. 403 (“Excluding Relevant Evidence for Prejudice, Confusion,
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`1
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`Waste of Time, or Other Reasons”); 37 C.F.R. § 42.24(b)(2) (Type-Volume Limits
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`IPR2018-00386
`U.S. Patent No. 9,490,411
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`for Patent Owner Response); 37 C.F.R. § 42.6(a)(3) (Rule Against Incorporation
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`by Reference); 37 C.F.R. § 42.61 (“Admissibility”).
`
`Petitioner objects to Exhibit 2011. The declarant of Exhibit 2011, Dr.
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`Schubert, fails to provide sufficient underlying facts or data upon which the
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`statements contained therein could legitimately be based, in violation of F.R.E.
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`702. Dr. Schubert has also not “reliably applied the principles and methods to the
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`facts of the case,” and his opinions in Exhibit 2011 are not “the product of reliable
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`principles and methods,” in violation of F.R.E. 702. Furthermore, there is no
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`indication that Dr. Schubert based his opinions on facts or data upon which an
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`expert in the relevant field would reasonably rely in violation of F.R.E. 703. In
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`addition, Dr. Schubert lacks personal knowledge of material to which he testifies in
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`violation of F.R.E. 602.
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`Further, Dr. Schubert purports to repeat statements in the exhibit and/or
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`other sources they cite for the truth of the matter contained therein, but without
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`demonstrating that any hearsay exception applies, in violation of F.R.E. 801, 802,
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`and 403.
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`Accordingly, permitting reliance on Exhibit 2011 in Patent Owner’s
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`Response or other submissions of Patent Owner would be misleading and unfairly
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`prejudicial to Petitioner (F.R.E. 403).
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`2
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`IPR2018-00386
`U.S. Patent No. 9,490,411
`II. Objections to Exhibit 2013, And Any Reference to/Reliance Thereon
`Grounds for objections: 37 C.F.R. § 42.61 (“Admissibility”); 37 C.F.R. §
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`42.64(a) (“Deposition evidence”); 37 C.F.R. § 42.53(f)(8) (Objections in
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`depositions).
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`Petitioner objects to Exhibit 2013. Exhibit 2013 appears to be a deposition
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`transcript from another proceeding. Petitioner hereby expressly repeats and
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`incorporates by reference all of objections stated on the record in those depositions,
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`and affirmatively maintain all such objections.
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`III. Objections to Exhibit 2014, And Any Reference to/Reliance Thereon
`Grounds for objection: F.R.E. 901 (“Authenticating or Identifying
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`Evidence”); F.R.E. 1002 (“Requirement of the Original”); F.R.E. 1003
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`(“Admissibility of Duplicates”); F.R.E. 401 (“Test for Relevant Evidence”); F.R.E.
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`402 (“General Admissibility of Relevant Evidence”); F.R.E. 403 (“Excluding
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`Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons”);
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`F.R.E. 801 (“Definitions That Apply to This Article; Exclusions from Hearsay”),
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`802 (“The Rule Against Hearsay”); 37 C.F.R. § 42.61 (“Admissibility”).
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`Petitioners object to the use of Exhibit 2014 under F.R.E. 901, 1002, 1003,
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`and 37 C.F.R. § 42.61 because Patent Owner fails to provide the authentication
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`required for this document, and the Exhibit is not self-authenticating under F.R.E.
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`902.
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`3
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`Petitioners object to Exhibit 2014 as impermissible hearsay under F.R.E.
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`IPR2018-00386
`U.S. Patent No. 9,490,411
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`801, 802, and 805 to the extent to which the out of court statements therein, or the
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`out of court statements referenced therein, are offered for the truth of the matters
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`asserted and constitute impermissible hearsay for which Patent Owner has not
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`demonstrated any exception or exclusion to the rule against hearsay (F.R.E. 801,
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`802, 805).
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`
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`Dated: September 25, 2018
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`
`
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`
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`Mailing address for all
`correspondence:
`ROPES & GRAY LLP
`IPRM – Floor 43
`Prudential Tower
`800 Boylston Street
`Boston, MA 02199-3600
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`
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`Respectfully submitted,
`
`
`ROPES & GRAY LLP
`
`
`By: /Gabrielle E. Higgins/
`
`Gabrielle E. Higgins
`Reg. No. 38,916
`ROPES & GRAY LLP
`1900 University Avenue, 6th Floor
`East Palo Alto, CA 94303-2284
`Phone: +1-650-617-4015
`Fax: +1-617-235-9492
`gabrielle.higgins@ropesgray.com
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`Attorneys for Petitioner, VIZIO, INC.
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`4
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`IPR2018-00386
`U.S. Patent No. 9,490,411
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that a copy of the foregoing PETITIONER’S
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`OBJECTIONS TO EXHIBITS SUBMITTED WITH PATENT OWNER’S
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`RESPONSE was served on September 25, 2018 in its entirety by causing the
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`aforementioned document to be electronically mailed, pursuant to the parties’
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`agreement, to the following attorneys of record for the Patent Owner listed below:
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`Back-up
`Counsel:
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`Lead Counsel: Martin M. Zoltick
`mzoltick@rfem.com
`ROTHWELL, FIGG, ERNST & MANBECK, P.C.
`607 14th Street, N.W., Suite 800
`Washington, DC 20005
`Phone: +1-202-783-6040
`Fax: +1-202-783-6031
`
`Robert P. Parker, rparker@rfem.com
`Derek F. Dahlgren, ddahlgren@rfem.com
`Michael H. Jones, mjones@rfem.com
`Mark T. Rawls, mrawls@rfem.com
`
`ROTHWELL, FIGG, ERNST & MANBECK, P.C.
`607 14th Street, N.W., Suite 800
`Washington, DC 20005
`Phone: +1-202-783-6040
`Fax: +1-202-783-6031
`litigationparalegals@rothwellfigg.com
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`Counsel for Patent Owner, NICHIA CORPORATION
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`Dated: September 25, 2018
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`
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`
`
`By: /Crena Pacheco/
`Name: Crena Pacheco
`ROPES & GRAY LLP
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`5
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