`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_____________________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_____________________
`
`
`ROKU, INC. and VIZIO, INC.,
`Petitioner
`
`v.
`
`ANCORA TECHNOLOGIES, INC.,
`Patent Owner
`
`_____________________
`
`Case IPR2021-01406
`U.S. Patent No. 6,411,941
`_____________________
`
`
`
`
`PETITIONER’S OBJECTIONS TO PATENT OWNER’S EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`
`
`
`
`Mail Stop “Patent Board”
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`Case IPR2021-01406
`U.S. Patent No. 6,411,941
`Pursuant to 37 C.F.R. § 42.64(b)(1), Roku, Inc. and Vizio, Inc. (collectively
`
`“Petitioner”) hereby object under the Federal Rules of Evidence (“FRE”) to the
`
`admissibility of Exhibits 2018, 2022, 2025, 2027, 2029, 2031, 2032, 2035, 2037,
`
`2042, 2043, 2044, and 2046, filed with the Patent Owner’s Response on May 3,
`
`2022 (“POR”). Petitioner timely objects under 37 C.F.R. § 42.64(b)(1) within 5
`
`business days of service of evidence to which the objection is directed, and
`
`Petitioner serves these objections to provide notice that Petitioner may move to
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`exclude Exhibits 2018, 2022, 2025, 2027, 2029, 2031, 2032, 2035, 2037, 2042,
`
`2043, 2044, and 2046, or portions thereof, under 37 C.F.R. § 42.64(c).
`
`
`
`I.
`
`EXHIBIT 2018
`FRE 401, 402, and 403: Petitioner objects to Exhibit 2018, “Declaration of
`
`Dr. David Martin (May 3, 2022),” for including information that is irrelevant or
`
`whose probative value to any ground upon which trial was instituted is
`
`substantially outweighed by the danger of unfair prejudice, confusing the issues,
`
`undue delay, wasting time, or needlessly presenting cumulative evidence.
`
`FRE 702: Petitioner objects to Exhibit 2018 because Dr. Martin does not
`
`have sufficient scientific, technical, or other specialized knowledge to help the trier
`
`of fact to understand the evidence or to determine a facts in issue, because his
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`Case IPR2021-01406
`U.S. Patent No. 6,411,941
`testimony is based on insufficient facts or data, and because his testimony is the
`
`product of unreliable principles and methods.
`
`FRE 702 and 703: Petitioner objects to Exhibit 2018 to the extent Patent
`
`Owner relies on Exhibits 2025, 2042, 2044, and 2046 for the same reasons as
`
`provided below, and because Exhibits 2025, 2042, 2044, and 2046 would not be
`
`reasonably relied on to be the basis for an expert opinion under FRE 703.
`
`Therefore, the portions of Exhibit 2018 relying on these Exhibits are inadmissible
`
`under FRE 702 and FRE 703.
`
`
`
`II. EXHIBIT 2022
`FRE 401, 402, and 403: Petitioner objects to Exhibit 2022, “Ancora Techs.,
`
`Inc. v. Apple, inc. [sic], Case No. 4:11-cv-06357 (Dkt. # 171-3) [Apple Inc.’s N.D.
`
`Cal. L.R. 3-3 (Invalidity) Disclosures],” as irrelevant or whose probative value to
`
`any ground upon which trial was instituted is substantially outweighed by the dan-
`
`ger of unfair prejudice, confusing the issues, undue delay, wasting time, or need-
`
`lessly presenting cumulative evidence. The exhibit appears to be invalidity conten-
`
`tions filed by an unrelated third party in an appellate court proceeding to which Pe-
`
`titioner is not a party. Ancora uses this exhibit to characterize positions taken by
`
`unrelated third parties (see, e.g., POR, 58, 70), which are irrelevant to the present
`
`proceeding.
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`Case IPR2021-01406
`U.S. Patent No. 6,411,941
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`
`
`III. EXHIBIT 2023
`FRE 401, 402, and 403: Petitioner objects to Exhibit 2023, identified as “Pe-
`
`tition, HTC Corp. v. Ancora Techs. Inc., Case No. CBM2017-00054, Paper 1
`
`(PTAB May 26, 2017)” as irrelevant because it contains positions presented by an
`
`unrelated third party in a Covered Business Method Review proceeding to which
`
`Nintendo is not a party. Ancora uses this exhibit to characterize positions taken by
`
`unrelated third parties (see, e.g., POR at 27), which is irrelevant to the present pro-
`
`ceeding.
`
`
`
`IV. EXHIBIT 2025
`FRE 401, 402, and 403: Petitioner objects to Exhibit 2025, “Croucher, ‘The
`
`BIOS Companion’ (1997) (Excerpts),” as irrelevant or whose probative value to
`
`any ground upon which trial was instituted is substantially outweighed by the dan-
`
`ger of unfair prejudice, confusing the issues, undue delay, wasting time, or need-
`
`lessly presenting cumulative evidence.
`
`FRE 801 and 802: To the extent Patent Owner relies on the contents of this
`
`document for the truth of the matter asserted, Petitioner objects to Exhibit 2025 as
`
`inadmissible hearsay under FRE 801 and 802 that does not fall under any excep-
`
`tion.
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`Case IPR2021-01406
`U.S. Patent No. 6,411,941
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`
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`V. EXHIBIT 2027
`FRE 401, 402, and 403: Petitioner objects to Exhibit 2027, “Joint News Re-
`
`lease (February 14, 2005),” as irrelevant because it includes information that is ir-
`
`relevant or whose probative value to any ground upon which trial was instituted is
`
`substantially outweighed by the danger of unfair prejudice, confusing the issues,
`
`undue delay, wasting time, or needlessly presenting cumulative evidence.
`
`FRE 801 and 802: This exhibit includes characterizations of an alleged
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`product offering by Ancora and characterizations of some aspects of technology
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`related to Ancora’s product offering. To the extent Patent Owner relies on the con-
`
`tents of this document for the truth of the matter asserted, Petitioner also objects to
`
`Exhibit 2027 as inadmissible hearsay under FRE 801 and 802 that does not fall un-
`
`der any exception.
`
`
`
`VI. EXHIBIT 2029
`FRE 401, 402, and 403: Petitioner objects to Exhibit 2029 as irrelevant be-
`
`cause it includes information that is irrelevant or whose probative value to any
`
`ground upon which trial was instituted is substantially outweighed by the danger of
`
`unfair prejudice, confusing the issues, undue delay, wasting time, or needlessly
`
`presenting cumulative evidence.
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`Case IPR2021-01406
`U.S. Patent No. 6,411,941
`FRE 801 and 802: To the extent Patent Owner relies on the contents of this
`
`document for the truth of the matter asserted, Petitioner objects to Exhibit 2029 as
`
`inadmissible hearsay under FRE 801 and 802 that does not fall under any excep-
`
`tion.
`
`
`
`VII. EXHIBIT 2031
`FRE 401, 402, and 403: Petitioner objects to Exhibit 2031 as irrelevant be-
`
`cause it includes information that is irrelevant or whose probative value to any
`
`ground upon which trial was instituted is substantially outweighed by the danger of
`
`unfair prejudice, confusing the issues, undue delay, wasting time, or needlessly
`
`presenting cumulative evidence.
`
`FRE 801 and 802: To the extent Patent Owner relies on the contents of this
`
`document for the truth of the matter asserted, Petitioner objects to Exhibit 2031 as
`
`inadmissible hearsay under FRE 801 and 802 that does not fall under any excep-
`
`tion.
`
`
`
`VIII. EXHIBIT 2032
`FRE 401, 402, and 403: Petitioner objects to Exhibit 2032 as irrelevant be-
`
`cause it includes information that is irrelevant or whose probative value to any
`
`ground upon which trial was instituted is substantially outweighed by the danger of
`
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`Case IPR2021-01406
`U.S. Patent No. 6,411,941
`unfair prejudice, confusing the issues, undue delay, wasting time, or needlessly
`
`presenting cumulative evidence.
`
`FRE 801 and 802: To the extent Patent Owner relies on the contents of this
`
`document for the truth of the matter asserted, Petitioner objects to Exhibit 2032 as
`
`inadmissible hearsay under FRE 801 and 802 that does not fall under any excep-
`
`tion.
`
`
`
`IX. EXHIBIT 2035
`FRE 401, 402, and 403: Petitioner objects to Exhibit 2035, “AIPLA statis-
`
`tics,” as irrelevant because it includes information that is irrelevant or whose pro-
`
`bative value to any ground upon which trial was instituted is substantially out-
`
`weighed by the danger of unfair prejudice, confusing the issues, undue delay, wast-
`
`ing time, or needlessly presenting cumulative evidence.
`
`FRE 801 and 802: To the extent Patent Owner relies on the contents of this
`
`document for the truth of the matter asserted, Petitioner objects to Exhibit 2035 as
`
`inadmissible hearsay under FRE 801 and 802 that does not fall under any excep-
`
`tion.
`
`
`
`X. EXHIBIT 2037
`FRE 401, 402, and 403: Petitioner objects to Exhibit 2037 as irrelevant be-
`
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`Case IPR2021-01406
`U.S. Patent No. 6,411,941
`cause it includes information that is irrelevant or whose probative value to any
`
`ground upon which trial was instituted is substantially outweighed by the danger of
`
`unfair prejudice, confusing the issues, undue delay, wasting time, or needlessly
`
`presenting cumulative evidence.
`
`
`
`XI. EXHIBIT 2042
`FRE 401, 402, and 403: Petitioner objects to Exhibit 2042, “Barron’s Dic-
`
`tionary of Computing and Internet Terms (5th Ed. 1996),” as irrelevant because it
`
`includes information that is irrelevant or whose probative value to any ground up-
`
`on which trial was instituted is substantially outweighed by the danger of unfair
`
`prejudice, confusing the issues, undue delay, wasting time, or needlessly present-
`
`ing cumulative evidence.
`
`FRE 801 and 802: To the extent Patent Owner relies on the contents of this
`
`document for the truth of the matter asserted, Petitioner objects to Exhibit 2042 as
`
`inadmissible hearsay under FRE 801 and 802 that does not fall under any excep-
`
`tion.
`
`
`
`XII. EXHIBIT 2043
`FRE 401, 402, and 403: Petitioner objects to Exhibit 2043, “Decision Grant-
`
`ing Institution, Case No. IPR2020-01609, Paper 7 (PTAB Feb. 16, 2021),” as irrel-
`
`- 7 -
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`Case IPR2021-01406
`U.S. Patent No. 6,411,941
`evant because it includes information that is irrelevant or whose probative value to
`
`any ground upon which trial was instituted is substantially outweighed by the dan-
`
`ger of unfair prejudice, confusing the issues, undue delay, wasting time, or need-
`
`lessly presenting cumulative evidence.
`
`
`
`XIII. EXHIBIT 2044
`FRE 401, 402, and 403: Petitioner objects to Exhibit 2044, “Free On-Line
`
`Dictionary of Computing (June 6, 1999), available at http://foldoc.org/bios,” as ir-
`
`relevant because it includes information that is irrelevant or whose probative value
`
`to any ground upon which trial was instituted is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay, wasting time, or
`
`needlessly presenting cumulative evidence. For example, Ancora has failed to
`
`show the date on which the copied excerpts were first publicly available. The only
`
`date marking on the document is “1999-06-09.” Ancora has failed to show that this
`
`exhibit was disseminated or available such that persons of ordinary skill in the art
`
`would have been able to locate and access it before the priority date of the chal-
`
`lenged patent.
`
`FRE 801 and 802: To the extent Patent Owner relies on the contents of this
`
`document for the truth of the matter asserted, Petitioner objects to Exhibit 2044 as
`
`inadmissible hearsay under FRE 801 and 802 that does not fall under any excep-
`
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`Case IPR2021-01406
`U.S. Patent No. 6,411,941
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`tion.
`
`FRE 901: Petitioner also objects to Exhibit 2044 because Ancora has failed
`
`to authenticate the exhibit under FRE 901. Specifically, Ancora has failed to pro-
`
`duce evidence sufficient to support a finding that this exhibit is what Ancora
`
`claims it to be.
`
`
`
`XIV. EXHIBIT 2046
`FRE 401, 402, and 403: Petitioner objects to Exhibit 2046, “Paul C. Kocher,
`
`Timing Attacks on Implementations of DiffieHellman, RSA, DSS, and Other Sys-
`
`tems, Proceedings of 16th Annual Int’l Cryptology Conf. (Aug. 18–22, 1996),” as
`
`irrelevant because it includes information that is irrelevant or whose probative val-
`
`ue to any ground upon which trial was instituted is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay, wasting time, or
`
`needlessly presenting cumulative evidence.
`
`FRE 801 and 802: To the extent Patent Owner relies on the contents of this
`
`document for the truth of the matter asserted, Petitioner objects to Exhibit 2046 as
`
`inadmissible hearsay under FRE 801 and 802 that does not fall under any excep-
`
`tion.
`
`
`
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`Case IPR2021-01406
`U.S. Patent No. 6,411,941
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/Jon E. Wright/
`
`Jon E. Wright (Reg. No. 50,720)
`Attorney for Petitioner
`
`
`
`
`Date: May 10, 2022
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
`(202) 371-2600
`
`
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`Case IPR2021-01406
`U.S. Patent No. 6,411,941
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that a true and correct copy of the foregoing
`
`PETITIONER’S OBJECTIONS TO PATENT OWNER’S EVIDENCE
`
`PURSUANT TO 37 C.F.R. § 42.64(b)(1) were served electronically via e-mail on
`
`May 10, 2022, in its entirety on the following counsel for Patent Owner:
`
`
`David A. Gosse
`Nicholas T. Peters
`Karen J. Wang
`FITCH, EVEN, TABIN & FLANNERY LLP
`ancora-ipr@fitcheven.com
`dgosse@fitcheven.com
`ntpete@fitcheven.com
`kwang@fitcheven.com
`
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`
`
`
`/Jon E. Wright/
`
`Jon E. Wright (Reg. No. 50,720)
`Attorney for Petitioner
`
`
`Date: May 10, 2022
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
`(202) 371-2600
`
`
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