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UNITED STATES PATENT AND TRADEMARK OFFICE
_____________________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
_____________________
GOOGLE INC., NEST LABS, INC., AND DROPCAM, INC.
Petitioners
v.
E.DIGITAL CORPORATION
Patent Owner
_____________________
Case IPR2015-01470
Patent 8,311,522 B1
_____________________
PETITIONERS’ 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 and Trademark Office
P.O. Box 1450
Alexandria, VA 22313-1450
Case IPR2015-01470
U.S. Patent No. 8,311,522 B1
- 2 -
I. INTRODUCTION
Pursuant to 37 C.F.R. § 42.64(b)(1), Google Inc., Nest Labs, Inc., and
Dropcam, Inc. (collectively the “Petitioners”) hereby object under the Federal Rules of Evidence (“FRE”) and 37 C.F.R. § 42.62 to the admissibility of the following evidence that e.Digital Corporation (“Patent Owner” or “PO”) submitted
on March 23, 2016 in support of its Patent Owner Response (“POR”) to Petition.
Petitioners timely file these objections within five business days of Patent Owner Response, and hereby provides notice that Petitioners may move to exclude under 37 C.F.R. § 42.64(c).
II. IDENTIFICATION OF CHALLENGED EVIDENCE AND GROUNDS
FOR OBJECTIONS
Ex. 2015
Petitioners object to Ex. 2015, and any reference to or in reliance on it for the following grounds:
FRE403: The declaration includes information 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, in a failed attempt to argue alleged non-obviousness of Miluzzo/Robarts combination, the declaration confuses the
Case IPR2015-01470 U.S. Patent No. 8,311,522 B1
- 3 -
concept of initialization of a set of themes with the concept of selection of a theme
based on sensor data. (See, ¶¶ 44 -58) (See also e.g., ¶¶ 28, 29, 32, 33, 41, 61, 66.)
FRE 602: The declaration includes statements and testimony made without any personal knowledge. For example, the declaration alleges that context does not equal presence. (See e.g., ¶¶ 27 -30.) Yet the declarant’s only experience with context awareness is that one of the declarant’s colleagues works in part in the area
of context awareness, and the colleague’s students took declarant’s “Wireless and
Mobile Networking” class and did project in the area. (¶ 12.)
FRE 702/703: The declaration includes statements and testimony not based on scientific, technical, or other specialized knowledge. These statements and
testimony are based on insufficient facts or data, and is not the product of reliable principles and methods. Further, the relied upon facts and data are not those on which experts in this field would reasonably rely. (See e.g., ¶¶ 25, 41, 58, 61, and66.) Exs. 2017-2019
Petitioners object to Exs. 2017-2019, and any reference to or in reliance on these exhibits for the following grounds:
Case IPR2015-01470 U.S. Patent No. 8,311,522 B1
- 4 -
FRE 403: The exhibits include information 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, PO relies on Ex. 2018 to define presence detection as determining a user’s activity. (POR, 9.) Then, PO relies on
Ex. 2017 to allege that presence is different from determining user activity. (POR,18.) PO also relies on Ex. 2019 to argue that context awareness is more complex
than presence detection (POR, 9.) Yet PO does not provide its own definition of context awareness. Further, Ex. 2019 shows that there are many definitions of context awareness. (Ex. 2019, 6.)
FRE 801/802: The exhibits’ authors are not under oath and are not subject to cross-examination in this proceeding. Because each of the exhibits is an out-ofcourt statement offered for its truth, and does not fall within any exception to the rule against hearsay, they are inadmissible hearsay. FRE 901: Each of the exhibits is an unauthenticated document and is not self-authenticating under FRE 902. It carries no indication of its source or where Patent Owner obtained it from. Thus, the exhibits lacks authentication.
Case IPR2015-01470
U.S. Patent No. 8,311,522 B1
- 5 -
III. CONCLUSION
For at least the foregoing reasons, Petitioners object to Exs. 2015 and 2017-2019.
Respectfully submitted,
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
/Michael Messinger, Reg. No. 37,575/
Michael V. Messinger, Reg. No. 37,575
Michelle K. Holoubek, Reg. No. 54,179
Attorneys for Petitioners
Date: March 30, 2016
1100 New York Avenue, N.W.
Washington, D.C. 20005
(202) 371-2600
_____________________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
_____________________
GOOGLE INC., NEST LABS, INC., AND DROPCAM, INC.
Petitioners
v.
E.DIGITAL CORPORATION
Patent Owner
_____________________
Case IPR2015-01470
Patent 8,311,522 B1
_____________________
PETITIONERS’ 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 and Trademark Office
P.O. Box 1450
Alexandria, VA 22313-1450
Case IPR2015-01470
U.S. Patent No. 8,311,522 B1
- 2 -
I. INTRODUCTION
Pursuant to 37 C.F.R. § 42.64(b)(1), Google Inc., Nest Labs, Inc., and
Dropcam, Inc. (collectively the “Petitioners”) hereby object under the Federal Rules of Evidence (“FRE”) and 37 C.F.R. § 42.62 to the admissibility of the following evidence that e.Digital Corporation (“Patent Owner” or “PO”) submitted
on March 23, 2016 in support of its Patent Owner Response (“POR”) to Petition.
Petitioners timely file these objections within five business days of Patent Owner Response, and hereby provides notice that Petitioners may move to exclude under 37 C.F.R. § 42.64(c).
II. IDENTIFICATION OF CHALLENGED EVIDENCE AND GROUNDS
FOR OBJECTIONS
Ex. 2015
Petitioners object to Ex. 2015, and any reference to or in reliance on it for the following grounds:
FRE403: The declaration includes information 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, in a failed attempt to argue alleged non-obviousness of Miluzzo/Robarts combination, the declaration confuses the
Case IPR2015-01470 U.S. Patent No. 8,311,522 B1
- 3 -
concept of initialization of a set of themes with the concept of selection of a theme
based on sensor data. (See, ¶¶ 44 -58) (See also e.g., ¶¶ 28, 29, 32, 33, 41, 61, 66.)
FRE 602: The declaration includes statements and testimony made without any personal knowledge. For example, the declaration alleges that context does not equal presence. (See e.g., ¶¶ 27 -30.) Yet the declarant’s only experience with context awareness is that one of the declarant’s colleagues works in part in the area
of context awareness, and the colleague’s students took declarant’s “Wireless and
Mobile Networking” class and did project in the area. (¶ 12.)
FRE 702/703: The declaration includes statements and testimony not based on scientific, technical, or other specialized knowledge. These statements and
testimony are based on insufficient facts or data, and is not the product of reliable principles and methods. Further, the relied upon facts and data are not those on which experts in this field would reasonably rely. (See e.g., ¶¶ 25, 41, 58, 61, and66.) Exs. 2017-2019
Petitioners object to Exs. 2017-2019, and any reference to or in reliance on these exhibits for the following grounds:
Case IPR2015-01470 U.S. Patent No. 8,311,522 B1
- 4 -
FRE 403: The exhibits include information 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, PO relies on Ex. 2018 to define presence detection as determining a user’s activity. (POR, 9.) Then, PO relies on
Ex. 2017 to allege that presence is different from determining user activity. (POR,18.) PO also relies on Ex. 2019 to argue that context awareness is more complex
than presence detection (POR, 9.) Yet PO does not provide its own definition of context awareness. Further, Ex. 2019 shows that there are many definitions of context awareness. (Ex. 2019, 6.)
FRE 801/802: The exhibits’ authors are not under oath and are not subject to cross-examination in this proceeding. Because each of the exhibits is an out-ofcourt statement offered for its truth, and does not fall within any exception to the rule against hearsay, they are inadmissible hearsay. FRE 901: Each of the exhibits is an unauthenticated document and is not self-authenticating under FRE 902. It carries no indication of its source or where Patent Owner obtained it from. Thus, the exhibits lacks authentication.
Case IPR2015-01470
U.S. Patent No. 8,311,522 B1
- 5 -
III. CONCLUSION
For at least the foregoing reasons, Petitioners object to Exs. 2015 and 2017-2019.
Respectfully submitted,
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
/Michael Messinger, Reg. No. 37,575/
Michael V. Messinger, Reg. No. 37,575
Michelle K. Holoubek, Reg. No. 54,179
Attorneys for Petitioners
Date: March 30, 2016
1100 New York Avenue, N.W.
Washington, D.C. 20005
(202) 371-2600
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