Paper No. _
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`PHARMATECH SOLUTIONS, INC.
`Petitioner
`
`V.
`
`LIFESCAN SCOTLAND LTD.
`
`Patent Owner
`
`Case IPR2013—00247
`
`Patent 7,250,105
`
`REPLY TO PATENT OWNER’S NOVEMBER 15, 2013 RESPONSE
`
`Respectfully submitted,
`LATHROP & GAGE LLP
`
`kw’?M
`
`William A. Rudy, Reg. No. 34,916
`
`A. Justin Poplin, Reg. No. 53,476
`
`2345 Grand Boulevard, Suite 2400
`
`Kansas City, Missouri 64108
`
`Tel: 913-451-5130
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`PHARMATECH SOLUTIONS, INC.
`Petitioner
`
`V.
`
`LIFESCAN SCOTLAND LTD.
`
`Patent Owner
`
`Case IPR2013—00247
`
`Patent 7,250,105
`
`REPLY TO PATENT OWNER’S NOVEMBER 15, 2013 RESPONSE
`
`Respectfully submitted,
`LATHROP & GAGE LLP
`
`kw’?M
`
`William A. Rudy, Reg. No. 34,916
`
`A. Justin Poplin, Reg. No. 53,476
`
`2345 Grand Boulevard, Suite 2400
`
`Kansas City, Missouri 64108
`
`Tel: 913-451-5130
`
`
`
`Through this paper, Petitioner Pharmatech Solutions, Inc. (“Pharmatech”)
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`respectfully replies to the November 15, 2013 Response of Patent Owner Lifescan
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`Inc. (“Lifescan”). If any fee is necessary for this paper to be fully considered,
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`Pharmatech respectfully requests that all such fees be charged to Deposit Account
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`No. 12-600 with reference to attorney docket number 533625. Lifescan is being
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`served a copy of this paper as shown by the attached Certificate of Service.
`
`I.
`
`INTRODUCTION
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`Nearly two week before Lifescan filed its Response, the Federal Circuit is-
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`sued its opinion entitled Lifescan Scotland Ltd. v. Shasta Technologies LLC , 734
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`F.3d 1361 (Fed. Cir. 2013) (“Lifescan Decision”, Exh. 1029). In its Lifescan Deci-
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`sion, the Federal Circuit reversed the grant of a preliminary injunction against
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`Pharmatech and others. 734 F.3d at 1377. The Federal Circuit “conclude[d] that
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`Lifescan’s OneTouch Ultra meters substantially embody the methods claim in
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`[U.S. Patent No. 7,250,105 (Exh. 1002)] and their distribution therefore exhausts
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`Lifescan’s patent rights.” Id. In reaching this conclusion, the Federal Circuit decid-
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`ed that “strips with two working electrodes were disclosed by the prior art.” Id. at
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`1369. “The fact that the prior art strips might have required some reconfiguration
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`to work use with Lifescan’s meters is irrelevant. There is no suggestion that prior
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`art strips with two working electrodes could not be easily configured to work with
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`meters performing a comparing function.” Id. 1373.
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`Lifescan’s Response makes no mention of the Lifescan Decision. Instead, af-
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`ter differentiating between the “test strip elements” and the steps performed by a
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`“measuring device,” Lifescan argues extensively that the “test strip elements” are
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`1
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`
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`not in the prior art. (Response, Paper 16 at 17-26) Collateral estoppel, however,
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`prevents Lifescan from once again re-litigating this issue. And in any event,
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`Lifescan also ignores both the ‘105 Patent, which says, “The two working sensor
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`parts may be arranged as convenient,” and Nankai’s teaching that the shape and
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`arrangement of the sensors may vary. (Exh. 1002 at 3:36-58; Exh. 1003 at 8:47-52;
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`Exh. 1024 at ¶ 20) Lifescan cannot overcome those disclosures, its “criticality” ar-
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`gument (Response, Paper 16 at 50) rings hollow, and the USPTO should maintain
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`its decision that the strips are obvious. (Paper 11 at 11-19)
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`What remains at issue are the steps performed by the “measuring device”—
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`“comparing the electric current from each of the working sensor parts to establish a
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`different parameters; and giving an indication of an error if said different parame-
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`ter is greater than a predetermined threshold.” (the ‘105 Patent, Exh. 1002 at 8:1-
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`5). Specifically, the issue is whether these elements save claims 1-3 from being
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`unpatentable as obvious.1
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`Responding to the Board Decision that Schulman (U.S. Pat. No. 5,791,344,
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`Exh. 1007) discloses “a particular way in which multiple measurements from a
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`single blood sample are compared and used to alter the user to an unreliable test,”
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`(Decision, Paper 11 at 13) Lifescan simply raises a series of strawmen to divert the
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`issue at hand: what would have been obvious to do with prior art test strips capable
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`
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`1 As the Board noted with respect to Lifescan’s Preliminary Response, Lifescan’s
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`current arguments “are [again] directed to claim 1, and Lifescan does not address
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`claims 2 and 3 with separate specific arguments. (Decision, Paper 11 at 18)
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`2
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`
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`of obtaining multiple measurements? Shulman teaches and claims “means for
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`comparing the sensor signals obtained from each of said plurality of sensors and
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`generating a composite signal only if the respective sensor signals are within a first
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`prescribed amount of each other.” (Id. at 21:32-36) Schulman further teaches
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`“means for generating an error message in the event that the respective signals are
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`not with said first prescribed amount of each other.” (Id. at 22:20-23)
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`Knowing, as Lifescan concedes, that “obtaining accurate glucose measure-
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`ments . . . is critical,” (Response, Paper 16 at 2) a person of ordinary skill in the art
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`would only have a finite number of solutions to address the accuracy problem
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`when presented with a prior art test strip with multiple working sensors capable of
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`obtaining multiple measurements from a single blood sample. Schulman (Exh.
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`1007 at 21:34-35), Nankai (U.S. Pat. No. 5,120,420, Exh. 1003 at 9:1-5) and the
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`‘105 Patent (Exh. 1002 at 4:9-13) each disclose averaging multiple measurements
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`to present more accurate results. And Schulman further taught presenting an error
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`message if the difference between the multiple measurements is too disparate.
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`(Exh. 1007 at 22:21-24). The decision in the ‘105 Patent to signal an error when
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`the multiple measurements are too disparate is simply a “predictable variation” that
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`“a person of ordinary skill can implement.” It is thus obvious and unpatentable. See
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`KSR Int’l Co. v. Teleflex, Inc. 550 U.S. 398, 417 (2007).
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`Finally, copying is the only objective indicia of non-obviousness (or “sec-
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`ondary considerations”) cited by Lifescan. But Lifescan ignores that such identity
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`is necessary for the Genstrip to work with Lifescan’s OneTouch Ultra meters that
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`purportedly practice the ‘105 Patent. Moreover, evidence of copying alone is insuf-
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`3
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`
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`ficient. See Cable Elec. Prods., Inc. v. Genmark Inc., 770 F.2d 1015, 1028 (Fed.
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`Cir. 1985).
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`Consistent with the Board’s Decision (Paper 11), Pharmatech has met its
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`burden and proved the unpatentability of claims 1-3 of the ‘105 Patent by a pre-
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`ponderance of the evidence.
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`II. OVERVIEW
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`A. Diabetes/Blood Glucose Monitoring
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`“Glucose monitoring systems…are used by individuals with diabetes to as-
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`sist them in maintaining healthy glucose levels. Such systems typically consist of
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`an electrochemical meter and disposable test strips” Lifescan Decision, 734 F.3d at
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`1363. Pharmatech agrees with Lifescan that “[o]btaining accurate glucose meas-
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`urements with these systems is critical because patients adjust one or both of their
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`food intake and insulin doses based on the measurements. Inaccurate measure-
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`ments can have dire results for patients.” (Response, Paper 16 at 2 (citations omit-
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`ted))
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`B. The ‘105 Patent
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`“The ‘105 Patent claims to improve upon earlier [glucose
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`monitoring] systems. It claims a method of comparing the meas-
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`urements taken by two separate working electrodes [6b 8d]. If the
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`readings of the two working electrodes differ significantly, this in-
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`dicates problems such as inadequate sample volume or manufac-
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`turing defects, and the readings are to be discarded. A reference
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`electrode [4b] on the strip serves as a common reference for both
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`4
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`
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`working electrodes.” Lifescan Decision,734 F.3d at 1364
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`Distilling Lifescan’s extensive discussion of the electrochemical measuring
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`technique generally, and the method of the ‘105 Patent specifically, each working
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`electrode forms a complete circuit with the reference electrode. (Response, Paper
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`16 at 5) Glucose levels are determined from the electric current . . . measured at
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`each circuit in response to exposure to whole blood. (Exh. 2008 at ¶ 34) The ‘105
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`Patent uses the term “sensor parts” to refer to electrodes located on the strip.
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`Lifescan Decision, 734 F.3d at 1365.
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`In describing the ‘105 Patent, Lifescan notes that many elements are directed
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`to the specific configuration of the disposable test strip, which it identifies as the
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`“test strip elements.” (Response, Paper 16 at 12) But the strips are obvious as set
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`forth in the Petition (Paper 1) and the Decision to Institute (Paper 11),2 and the
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`Federal Circuit already (and correctly) found that “[t]he ‘measuring an electric cur-
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`rent…,’ ‘comparing the electric current…,’ and “giving an indication of an er-
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`ror…’ steps are performed by the meter.” Lifescan Decision, 734 F.3d 1365.
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`C. Schulman
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`Schuman claims a glucose
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`monitoring system that can contin-
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`uously measure the glucose levels
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`in a patient. (Exh. 1007 at 2:27-30,
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`FIG. 1 (reproduced here)) The glu-
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`2 Lifescan is also estopped from arguing otherwise. See Section III herein.
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`5
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`
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`cose monitor [34] of this system performs the “measuring,” “comparing” and “giv-
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`ing” function similar to a meter described in the ‘105 Patent. (Id. at 10:30-49) In
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`the place of electrodes placed on a disposable test strip to form a sensor, the elec-
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`trodes that form the sensor in Schulman are placed on a needle [38] that is inserted
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`into a patient’s vein. (Id. at 10:9-25) While Lifescan makes much of the specific
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`sensors used in Schulman, it cannot convincingly dispute the method steps taught
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`by Schulman. Notably, the proposed rejections do not rely upon the specific sensor
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`of Schulman; but in any event, even the sensors have strong similarities.
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`
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`Like the ‘105 Patent, the sensor
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`in
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`Schulman requires at least a working electrode
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`[W1] coated with a reagent layer and a refer-
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`ence electrode [R] to complete a circuit as well
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`as another electrode [C]. (Id. at 6:50-61). FIG.
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`2A from Schulman is reproduced to the right for
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`convenience. While both Schulman and the ‘105 Patent measure electric current to
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`determine glucose levels, Lifescan is correct that the methodologies differ. In both,
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`however, glucose values can accurately be measured because “the rate of the reac-
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`tion[s]…directly relate[] to the concentration of glucose in the blood.” (Id. at 7:4-
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`5)
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`
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`Schulman offers several alternative embodiments for its invention. One al-
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`ternative adds a second working electrode that is not surrounded by a reagent to
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`provide a background measurement “and thus provide a means for compensation
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`the measurement for background …variations.” (Id. at 7:50 to 8:10; See Response,
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`6
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`
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`Paper 16 at 33 FIG. 3). Additionally, accuracy can be improved by including “at
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`least
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`two…or more sensors…
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`within the same sensor assembly
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`32 (FIG 1).” (Id.at 9:33-35) FIG.
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`4C (reproduced here) illustrates a
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`glucose sensor assembly 32 that
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`includes two glucose sensors 106 and 108 . . .” (Id. at 9:41-42).3
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`Lifescan is correct; the working electrodes in the ‘105 Patent share the same
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`reference electrode while each glucose sensor assembly in Schulman includes its
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`own reference electrode. (Response, Paper 16 at 35). But that is immaterial to the
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`comparison functionality taught by Schulman. Schulman claims a meter with the
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`“means for processing each glucose sensor…including the means for comparing
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`the sensor signals obtained from each of a plurality of sensors and for generating a
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`composite sensor signal only if the respective sensors are within a first prescribed
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`amount of each other.” (Id. at 21:30-36) Schulman further claims a meter that “in-
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`cludes means for generating an error message in the event that the respective sen-
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`sor signals are not within said first prescribed amount of each other.” (Id. at 22:19-
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`24)
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`
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`3 In arguing that Schulman teaches measurements taken at different locations (Re-
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`sponse, Paper 16 at 36), Lifescan’s expert curiously states that “[t]here are no such
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`elements 106 or 108 called out in Fig 4C.” (Exh. 208 ¶ 62) The above replication
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`of FIG 4C shows that Lifescan is mistaken.
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`7
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`
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`D.
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` Person of Ordinary Skill
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`Pharmatech agrees with Lifescan’s identification of the qualification of a
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`person of ordinary skill. (Response at 13) This does not affect anything in the Peti-
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`tion (Paper 1) or the Decision to Institute (Paper 11).
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`E. The Lifescan Decision
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`On November 4, 2013, the Federal Circuit issued its opinion reversing the
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`grant of a preliminary injunction issued Lifescan favor. Lifescan Decision, 734
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`F.3d at 1377. The Federal Circuit held “that patent exhaustion principles apply
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`equally to all authorized transfers of title in property, regardless of whether the par-
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`ticular transfer at issue constituted a gift or a sale. [The Federal Circuit went on to]
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`further conclude that LifeScan’s OneTouch Ultra meters substantially embody the
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`methods claimed in the ‘105 patent and that their distribution therefore exhausts
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`LifeScan’s patent rights.” Id.
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`Lifescan presented evidence and argued both before the district court and the
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`Federal Circuit that “exhaustion is inapplicable [to transfers of the meter alone] be-
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`cause the meters do not embody the essential features of the ‘105 Patent.” Id. at
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`1369. “The question[, as identified by the Federal Circuit, was] what the inventive
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`features of the method claim were.” Id.4
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`
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`4 As “inventiveness” for exhaustion purposes is not coextensive with “patentabil-
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`ity,” id. at 1371, n. 5, the Lifescan Decision did not examine the merits of the ‘105
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`Patent’s method steps after finding: (a) “strips with two working electrodes were
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`disclosed by the prior art;” and (b) “[t]he fact that the prior art strips might have
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`8
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`
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`The Federal Circuit recognized that “a biosensor with multiple electrodes
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`was known in the prior art, as Lifescan’s own expert admitted.” Id. The Federal
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`Circuit continued that “during prosecution of the application that led to the ‘105
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`patent, LifeScan attempted to obtain apparatus claims directed to the disposable
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`test strip with two working electrodes. In response to a final rejection of its appa-
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`ratus claims on the strips as anticipated, LifeScan amended its claims to the strips
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`by adding the limitation that the second working electrode is ‘downstream from
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`[the] first working [electrode].’ However, the examiner once again rejected those
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`claims as anticipated, and LifeScan abandoned them.” Id. at 1370 (citation omit-
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`ted).
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`The method claims of the ‘105 Patent were allowed by the examiner
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`“because they required the steps of measuring an electric current at each working
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`sensor part proportional to the concentration of said substance in the sample liquid;
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`comparing the electric current from each of the working sensor parts to establish a
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`difference parameter; and giving an indication of an error if said difference param-
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`eter is greater than a predetermined threshold.” Id. (internal punctuation omitted).
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`The Federal Circuit then noted that “LifeScan also attempted to patent its strips in
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`a continuation application, U.S. Patent Application Serial No. 11/772,714. There
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`too, the examiner rejected LifeScan’s attempts to obtain a patent on its test strips,
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`finding that its strips were both anticipated by U.S. Patent No. 6,258,229 [Winarta,
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`Exh. 1005] and obvious in light of U.S. Patent No. 5,120,420 [Nankai, Exh.
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`
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`required some reconfiguration…is irrelevant.” See id. at 1373.
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`9
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`
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`1003].” Id. at 1370 n. 4. The Federal Circuit added that “[h]aving accepted the re-
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`jection of its claims drawn to the strips themselves by abandoning those claims in
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`both its original and continuation applications, LifeScan cannot now argue that the
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`strips themselves were the invention.” Id. at 1371. Finally, in response to identified
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`differences in configuration, the Federal Circuit concluded that “here, strips with
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`two working electrodes were disclosed by the prior art. The fact that the prior art
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`strips might have required some reconfiguration to use with LifeScan’s meters is
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`irrelevant. There is no suggestion that prior art strips with two working electrodes
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`could not be easily configured to work with meters performing a comparing func-
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`tion.” Id. at 1373.
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`III. COLLATERAL ESTOPPEL BARS RE-LITIGATION OF THE TEST
`STRIP ELEMENTS
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`“Collateral estoppel, also known as issue preclusion, shields a defendant
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`from having to ligate issues that have been fully and fairly tried in a previous ac-
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`tion and decided adversely to a party.” Pharmacia & Upjohn Co. v. Mylan Phar-
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`maccuticals, 170 F.3d 1373, 1389 (Fed. Cir. 1999); In re Freeman, 30 F.3d 1459,
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`1468-69 (Fed. Cir. 1994) (issue preclusion barred consideration on reexam of is-
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`sues already decided by a district court). While claim preclusion requires entry of a
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`final judgment within the meaning of 28 U.S.C. § 1291, “for purposes of issue pre-
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`clusion…’final judgment’ includes any prior adjudication of an issue in another ac-
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`tion that is determined to be sufficiently firm to be accorded conclusive effect. Re-
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`statement (Second) of Judgments § 13 (1982).
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`10
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`
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`A preliminary injunction determination can be sufficiently firm to be ac-
`
`corded conclusive effect “if the decision[ is] necessarily based upon a determina-
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`tion that constitutes an ‘insurmountable obstacle’ to plaintiffs success on the mer-
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`its.” Abbott Labs. v. Andrx Pharma., Inc., 473 F.3d 1208. “Such an insurmountable
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`obstacle exists when a prior decision made in connection with a preliminary in-
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`junction proceeding clearly intended to firmly and finally resolve the issue, rather
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`than estimate the likelihood of success of proving that issue.” Id. (internal quota-
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`tions omitted); Miller Brewing Co. v. Schlitz Brewing Co., 605 F.2d 990, 995-96
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`(7th Cir. 1979) (prior determination on preliminary injunction motion that the mark
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`LITE was generic precluded later effort to enforce mark).5
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`In deciding whether the transfer of a OneTouch meter alone exhausted
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`Lifescan ‘105 Patent rights, the Federal Circuit unequivocally held “that the sale of
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`the meter exhausts Lifescan’s patent rights,” which necessarily means that the Fed-
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`eral Circuit found the strip elements to be in the prior art. Id. at 1374. Collateral es-
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`toppel bars Lifescan from re-litigating before the Board that the strip elements are
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`
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`5 To determine whether findings made on preliminary injunction proceedings pro-
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`ceeding may invoke collateral estoppel, the Board should look to laws of the juris-
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`diction where the decision was made. Here the decision was made by the Federal
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`Circuit on a preliminary injunction arising from an action pending in the Ninth
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`Circuit. While the Ninth Circuit has not addressed the issue specifically, the Ninth
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`Circuit has cited the language of Miller with approval. Luben Indus., Inc. v. U.S.,
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`707 F.2d 1037, 1040 (9th Cir. 1983).
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`11
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`
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`not in the prior art.6
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`IV. THE COMBINATION OF THE PRIOR ART TEST STRIP ELE-
`MENTS WITH SCHULMAN
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`“A claimed invention is unpatentable if the differences between the claimed
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`invention and the prior art are such that the claimed invention as a whole would
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`have been obvious to one of ordinary skill in the relevant art.” Randall Mfg. v. Rea,
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`733 F.3d 1355, 1362 (Fed. Cir. 2013) (citing 35 U.S.C. § 103). “Whether a claimed
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`invention would have been obvious is a question of law, based on factual determi-
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`nations regarding the scope and content of the prior art, differences between the
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`prior art and the claims at issue, the level of ordinary skill in the pertinent art, and
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`any objective indicia of non-obviousness.” Id. (overturning Board determination of
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`non-obviousness on re-examination).
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`
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`A method “is likely the product not of innovation but of ordinary skill and
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`common sense” “when there is a…need or market pressure to solve a problem and
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`there are a finite number of identified, predictable solutions…within…[the] tech-
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`nical grasp” of a person of ordinary skill in the art. KSR, 550 U.S. at 420.
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`
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`The parties agree that the need for greater accuracy drives the science of
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`glucose monitoring. (Response, Paper 16 at 2) Since the Federal Circuit has cor-
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`
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`6 Regardless, Lifescan ignores both the ‘105 Patent, which says, “The two working
`
`sensor parts may be arranged as convenient,” and Nankai’s teaching that the shape
`
`and arrangement of the sensors may vary. (Exh. 1002 at 3:36-58; Exh. 1003 at
`
`8:47-52; Exh. 1024 at ¶ 20) Lifescan cannot overcome those disclosures, and the
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`USPTO should maintain its decision that the strips are obvious. (Paper 11 at 11-19)
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`12
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`
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`rectly determined the test strip elements to be in the prior art, the question is what
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`would someone of ordinary skill in the art have done with multiple glucose meas-
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`urements from a single sample. Lifescan acknowledges that the prior art taught that
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`the measurements could be averaged to achieve greater accuracy, which is identi-
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`fied as a goal in the ‘105 Patent. (Response at 18; Exh. 1002 at 4:9-13). Among the
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`other finite uses of multiple measurements known in the art is to compare the
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`measurements for differences, and the inclusion of such a comparison is preferred
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`over simply averaging. (Lichten, Exh. 1009 at 3; Khazanie, Exh. 1008 at 101-105)
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`
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`Lifescan cannot dispute that the measuring, comparing, and giving steps of
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`the method claimed in the ‘105 Patent—the only steps not performed by the prior
`
`art test strip elements—are disclosed in Schulman. Schulman claims a meter with
`
`the “means for processing each glucose sensor…including the means for compar-
`
`ing the sensor signals obtained from each of a plurality of sensors and for generat-
`
`ing a composite sensor signal only if the respective sensors are within a first pre-
`
`scribed amount of each other.” (Exh. 1007 at 21:30-36) Schulman further claim a
`
`meter that “includes means for generating an error message in the event that the
`
`respective sensor signals are not within said first prescribed amount of each other.
`
`(Id. at 22:19-24)
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`
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`Lifescan is left to attack Schulman on grounds unrelated to these claimed el-
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`ements. For example, Lifescan discusses extensively one embodiment of Schulman
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`including a second working electrode not covered with the reagent used to take
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`background measurements. (Response, Paper 16 at 32-34) The relevant embodi-
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`ment in Schulman, however, and the only embodiment capable of the enabling the
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`13
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`
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`measuring, comparing and giving steps is the embodiment with the multiple sen-
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`sors providing electric current from which the Schulman monitor gives either a
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`glucose reading or an error. (Exh. 1007 at claims 24 and 25) Similarly, Lifescan’s
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`focus on the differing method by which Shulman derives the current from which
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`glucose levels are determined is an issue with the sensor—not the meter during the
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`measuring, comparing, and providing. Moreover, even though the methods of ob-
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`taining a current are different, both allow for accurate measurements of glucose
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`levels from currents generated because the rate of both reactions at their respective
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`sensors “is directly related to the concentration of glucose in the blood.” (Id. at 7:4-
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`6)
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`V. SECONDARY CONSIDERATIONS
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`Pharmatech agrees with Lifescan that “consideration of the objective indicia
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`is part of the whole obviousness analysis, not just an after-thought.” (Response at
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`46 quoting Leo Pharm. Prods. Ltd. v. Rea, 726 F.3d 1346, 1357 (Fed. Cir. 2013)
`
`(emphasis in Leo). The only objective indicia cited by Lifescan, however, is copy-
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`ing. Lifescan simply ignores that some level of copying was necessary to get the
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`GenStrip to work with Lifescan OneTouch Ultra meters. Moreover, “more than the
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`mere fact of copying by an accused infringer is needed to make that action signifi-
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`cation to a determination of the obviousness issue.” Cable Elec. Products, Inc. v.
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`Genmark Inc., 770 F.2d at 1028.
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`VI. CONCLUSION
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`Lifescan’s Response (Paper 16) does not overcome the strong cases of obvi-
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`ousness in the Petition (Paper 1), and Pharmatech has carried its burden to prove
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`14
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`
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`invalidity. The analysis and preliminary conclusions of invalidity in the USPTO’s
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`Decision to Institute (Paper 11) were well reasoned and thoughtful, and Phar-
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`matech respectfully requests invalidation of claims 1-3 for the reasons set forth
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`therein, in the Petition, and in this Reply.
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`21338334v2
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`15
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`
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`PATENT
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`Attorney Docket No.: 545293
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`lnventor(s):
`
`Davies
`
`U.S. Patent No.: 7,250,105
`
`Issue Date:
`
`July 31, 2007
`
`Appl. No.:
`
`10/431,140
`
`For:
`
`Measurement of Substances In Liquid
`
`February 18, 2014
`
`Mail Stop Inter Party Review
`Commissioner For Patents
`
`P.O. Box 1450
`
`Alexandria, VA 22313-1450
`
`CERTIFICATE OF SERVICE UNDER 37 C.F.R. § 42.6(e)(3)
`
`The undersigned certifies that on February 18, 2014, a copy of the Reply To
`
`Patent Owner’s November 15, 2013 Response (16 pages); Exhibit 1029 (24 pages); and
`
`Certificate of Service Under 37 C.F.R. § 42.6(e)(3) (1 page) were mailed by first class
`
`mail bearing sufficient postage to:
`
`Philip S. Johnson
`Johnson & Johnson
`
`One Johnson & Johnson Plaza
`
`New Brunswick, New Jersey 08933
`
`February 18, 2014
`Date:
`
`Respectfully Submitted,
`
`LATHROP & GAGE LLP
`
`By \\.\‘>?« Q-
`
`
`
`A. Justin Poplin, Reg. No. 53,476
`2345 Grand Boulevard, Suite 2400
`Kansas City, Missouri 64108
`Tel: (913) 451-5130
`Fax: (816) 292-2001
`
`lofl
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