Filed on behalf of: Arkema Inc. and Arkema France
`By: Mark D. Sweet
`
`Mark J. Feldstein
`
`Erin M. Sommers
`
`Charles W. Mitchell
`
`FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, L.L.P.
`Telephone: 202-408-4000
`Facsimile: 202-408-4400
`E-mail: mark.sweet@finnegan.com; mark.feldstein@finnegan.com
`
` erin.sommers@finnegan.com; charles.mitchell@finnegan.com
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`Filed: May 11, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`ARKEMA INC. AND ARKEMA FRANCE
`Petitioner
`
`v.
`
`HONEYWELL INTERNATIONAL INC.
`Patent Owner
`______________________
`
`PGR2016-00011
`Patent No. 9,157,017
`______________________
`
`PETITIONER’S REPLY IN SUPPORT OF MOTION TO EXCLUDE
`PURSUANT TO BOARD ORDER (PAPER 49)
`
`
`
`
`
`
`
`
`By: Mark D. Sweet
`
`Mark J. Feldstein
`
`Erin M. Sommers
`
`Charles W. Mitchell
`
`FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, L.L.P.
`Telephone: 202-408-4000
`Facsimile: 202-408-4400
`E-mail: mark.sweet@finnegan.com; mark.feldstein@finnegan.com
`
` erin.sommers@finnegan.com; charles.mitchell@finnegan.com
`
`
`
`
`
`
`
`
`
`
`Filed: May 11, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`ARKEMA INC. AND ARKEMA FRANCE
`Petitioner
`
`v.
`
`HONEYWELL INTERNATIONAL INC.
`Patent Owner
`______________________
`
`PGR2016-00011
`Patent No. 9,157,017
`______________________
`
`PETITIONER’S REPLY IN SUPPORT OF MOTION TO EXCLUDE
`PURSUANT TO BOARD ORDER (PAPER 49)
`
`
`
`
`
`
`
`
`
`U.S. Patent No. 9,157,017
`PGR2016-00011
`
`I.
`
`Arkema Objected to Exhibit 2103 With Sufficient Particularity and
`Honeywell Lacked Authorization to File Exhibits 2165 and 2166
`Contrary to Honeywell’s mischaracterization (see Paper 51 at 1), Arkema
`
`timely objected to Ex. 2103 on a single, particular basis: “as inadmissible hearsay
`
`(see FRE 801 and 802), that does not fall under any exceptions, including FRE
`
`803, 804, 805, and 807.” Paper 25 at 16-17. This is in marked contrast to B/E
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`Aerospace, where the Petitioner provided a laundry list of general objections and
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`“[left] it to the reader as to whether an objection applie[d] to a particular exhibit.”
`
`See IPR2014-01513, Paper 104 at 6-7. HTC is also inapposite, as Patent Owner
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`there failed to assert any hearsay objection to the copyright date, stating instead
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`that the document was not “within the business records exception.” IPR2014-
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`01156, Paper 36 at 25-27.
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`Further, to be clear, Ex. 2103 is hearsay because it contains Dr. Thomas’s
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`out-of-this-proceeding statements offered for the truth of the matter asserted. See
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`FRE 801; Paper 36 at 4-5. Producing Dr. Thomas for cross-examination was one
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`way Honeywell could have cured Arkema’s crystal-clear hearsay objection, but
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`Honeywell made the strategic decision not to produce Dr. Thomas. Honeywell’s
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`assertion that Arkema’s arguments provided more particularized notice are
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`irrelevant to the admissibility of Exs. 2165 and 2166; indeed, Honeywell asserts
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`that it filed these exhibits to “show[ ] circumstantial guarantees of [Ex. 2103’s]
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`
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`1
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`U.S. Patent No. 9,157,017
`PGR2016-00011
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`trustworthiness,” i.e., for an unrelated purpose. Paper 51 at 1-2, 4. Not only do
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`these exhibits fail to cure Honeywell’s hearsay problem, they are also untimely,
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`unauthorized, and highly prejudicial supplemental evidence. See Paper 51 at 3
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`(citing 37 C.F.R. § 42.64(b)(2), which provides for the service, not the filing, of
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`supplemental evidence).
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`II. Exhibits 2165 and 2166 Are Irrelevant, Lack Guarantees of
`Trustworthiness, and Are Prejudicial to Arkema
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`Honeywell boldly asserts that the fact “[t]hat Arkema switched counsel is of
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`no moment.” Paper 51 at 4. But because Honeywell designated Dr. Singh’s
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`deposition transcript (Ex. 2166) as Highly Confidential, neither Arkema itself nor
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`Arkema’s counsel in this proceeding have access to that transcript, and they could
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`not have used it here even if they did. Ex. 1188 ¶¶ 2.2, 2.3, 3.1, 4.1(a)-(e), 4.2.
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`And it remains unclear how another untested hearsay declaration (Ex. 2165) and
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`excerpted deposition testimony (Ex. 2166) from a different employee-declarant
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`with secondhand knowledge of Dr. Thomas’s testing “shows circumstantial
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`guarantees of that data’s trustworthiness.” See Paper 51 at 4; FRE 807(a)(3).
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`Instead, rather than being proper supplemental evidence—due months ago—Exs.
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`2165 and 2166 are a blatant last-minute effort to load the record for appeal with
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`even more untested hearsay from Honeywell’s interested employee-witnesses.
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`Arkema respectfully requests that these exhibits be excluded and expunged.
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`
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`2
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`Respectfully submitted,
`
`Date: May 11, 2017
`
`U.S. Patent No. 9,157,017
`PGR2016-00011
`
`
`
`By: /Mark J. Feldstein/
`Mark D. Sweet, Reg. No. 41,469
`Mark J. Feldstein, Reg. No. 46,693
`Erin M. Sommers, Reg. No. 60,974
`Charles W. Mitchell, Reg. No. 73,228
`FINNEGAN, HENDERSON, FARABOW,
`
`GARRETT & DUNNER, L.L.P.
`901 New York Avenue, N.W.
`Washington, D.C. 20001-4413
`Telephone: 202-408-4000
`Facsimile: 202-408-4400
`
`Counsel for Petitioner
`Arkema Inc. and Arkema France
`
`
`
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`3
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`U.S. Patent No. 9,157,017
`PGR2016-00011
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that a copy of the foregoing Petitioner’s Reply in
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`Support of Motion to Exclude Pursuant to Board Order (Paper 49) was filed
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`by 5:00 PM and served electronically via email on May 11, 2017, in its entirety, on
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`the following:
`
`Gregg F. LoCascio, P.C.
`Noah Frank
`KIRKLAND & ELLIS LLP
`615 Fifteenth Street, NW
`Suite 1200
`Washington, DC 20005
`Telephone: (202) 879-5290
`Fax: (202) 879-5200
`glocascio@kirkland.com
`noah.frank@kirkland.com
`
`Eugene Goryunov
`KIRKLAND & ELLIS LLP
`300 North LaSalle
`Chicago, Illinois 60654
`Telephone: (312) 862-2000
`Fax: (312) 862-2200
`egoryunov@kirkland.com
`
`
`Patent Owner has consented to electronic service by email to
`HON_PTAB_Service@kirkland.com.
`
`/Charles W. Mitchell/
`Charles W. Mitchell, Reg. No. 73,228
`
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