UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________________
`
`Cyanotech Corporation
`Petitioner
`
`v.
`
`The Board of Trustees of the University of Illinois
`Patent Owner
`_______________________
`
`IPR2013-00401 (filed June 28, 2013)
`IPR2013-00404 (filed June 29, 2013)
`
`
`
`
`
`
`
`
`
`Cases:
`
`
`
`Patent No.: 5,527,533
`
`PRELIMINARY RESPONSE OF PATENT OWNER
`THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS
`
`Patent owner the Board of Trustees of the University of Illinois
`
`(“University”) submits this preliminary response in opposition to petitions
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`IPR2013-00401 and IPR2013-00402 filed by Cyanotech Corporation
`
`(“Cyanotech”).
`
`Cyanotech’s petitions for inter partes review of U.S. Pat. No. 5,527, 533
`
`(“Tso patent”) must be denied as barred by 35 U.S.C. § 315(a)(1). Cyanotech filed
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`a civil action challenging the validity of all claims of the Tso patent in the District
`
`of Hawaii on June 20, 2012—well before it filed the instant petitions. Thus
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`Cyanotech is barred from seeking inter partes review.
`
` 
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`1 
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`

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`I.
`
`
`
`PROCEDURAL BACKGROUND
`
`This patent dispute began on June 20, 2012, when Cyanotech filed a
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`declaratory judgment action challenging the validity of the Tso patent in the
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`District of Hawaii under 35 U.S.C. §§ 102 and 103. (Haw. Compl., No. 12-cv-352
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`(D. Haw. June 20, 2012), ECF No. 1 (attached hereto as Ex. 2001) (hereinafter
`
`“Hawaii Action”).) The Hawaii Action named both U.S. Nutraceuticals LLC,
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`d/b/a Valensa International (“Valensa”)—Cyanotech’s direct competitor and the
`
`exclusive licensee of the Tso patent—and the University as defendants. Nine days
`
`later, on June 29, 2012, Valensa and the University filed an action for infringement
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`of the Tso patent in the Middle District of Florida against Cyanotech and its
`
`wholly-owned subsidiary, Nutrex Hawaii LLC. (Fl. Compl., No. 12-cv-366 (M.D.
`
`Fla. June 29, 2012), ECF No. 1 (hereinafter “Florida Action”).) That same day,
`
`Cyanotech served the Complaint in the Hawaii Action.
`
`On July 30, 2012, Valensa and the University moved to dismiss Cyanotech’s
`
`Hawaii Action for lack of personal jurisdiction and under the doctrine of sovereign
`
`immunity. (Haw. Mot. Dismiss, ECF No. 10.) Cyanotech opposed the motion and
`
`also took jurisdictional discovery. (Haw. Mot. For Leave to Conduct Limited
`
`Discovery and for an Extension of Time to Respond to Defs. Mot. Dismiss, ECF
`
`No. 28; Plfs.’ Haw. Opp. to Defs.’ Mot. Dismiss, ECF No. 37.) On February 7,
`
`2013, the Hawaii Action was dismissed as barred by the University’s sovereign
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`2 
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`immunity. (Haw. Order Granting Defs.’ Mot. Dismiss at 2, ECF No. 49.)
`
`On March 29, 2013, the Florida court denied Cyanotech’s motion to dismiss
`
`and/or transfer the Florida Action. (Fl. Order Den. Mot. Transfer and Dismiss,
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`ECF No. 37.) Cyanotech then filed an Answer and Counterclaims, seeking inter
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`alia, declarations of non-infringement and invalidity. (Defs.’ Fl. Answer and
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`Countercl. at ¶¶ 46–49, ECF No. 38.) The parties also agreed to a scheduling order
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`and began substantively litigating the Florida Action, including serving and
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`responding to written discovery, exchanging infringement contentions, and
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`negotiating a protective order and electronic discovery protocol.
`
`On June 28 and 29, 2013, long after Cyanotech filed the Hawaii Action,
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`Cyanotech filed the instant two petitions seeking inter partes review of the Tso
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`patent. The second petition was filed exactly one year from the date Valensa and
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`the University filed the Florida Action. Meanwhile, the parties continue to litigate
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`the merits of the Florida Action.1
`
`
`
`
`
`                                                            
`1 For approximately two months (July 2013 and August 2013), Cyanotech
`refused to produce documents or participate further in written discovery in view of
`its filed (but not-yet-decided) Motion to Stay. (See Pls.’ Fl. Am. Resp. at 6 and Ex.
`14, ECF No. 53.) However, Cyanotech has recently indicated that it apparently
`intends to re-engage in substantive litigation of the Florida Action.
`3 
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` 
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`

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`II. ARGUMENT
`
`
`Section 315 of the America Invents Act (“AIA”), Public Law 112-29, sets
`
`out a clear statutory bar limiting access to inter partes review:
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`(a) Infringer’s Civil Action.
`
`
`(1) Inter partes review barred by civil action.— An inter partes
`review may not be instituted if, before the date on which the petition
`for such a review is filed, the petitioner or real party in interest filed a
`civil action challenging the validity of a claim of the patent.
`
`
`35 U.S.C. § 315(a)(1). The plain language bars a party who has “filed a civil
`
`action challenging the validity of a claim of the patent” from thereafter petitioning
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`for inter partes review. Here the petitioner, Cyanotech, has done exactly that. On
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`June 20, 2012—long before the present petitions were filed—Cyanotech filed a
`
`civil action in the District of Hawaii seeking a declaration that the Tso patent was
`
`invalid under, inter alia, 35 U.S.C. §§ 102 and 103. (Ex. 2001 at ¶¶ 8, 22.)
`
`Cyanotech’s petitions are barred by statute.
`
`A.
`
`Section 315(a)(1) Is Unambiguous and the Board Must Apply It as
`Written
`
`Cyanotech urges the Board to ignore the statute’s plain language. But the
`
`Supreme Court has repeatedly and consistently held that, where a statute is
`
`unambiguous, it must be applied as written. E.g. Bd. of Governors of Fed. Res. Sys.
`
`v. Dimension Fin. Corp., 474 U.S. 361, 368 (1986) (“If the statute is clear and
`
`unambiguous that is the end of the matter, for the court, as well as the agency, must
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`4 
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`

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`give effect to the unambiguously expressed intent of Congress.”) (quoting Chevron
`
`U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984)); see
`
`also Carcieri v. Salazar, 555 U.S. 379, 387 (2009) (“[If] the statutory text is plain
`
`and unambiguous [then] we must apply the statute according to its terms.”)
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`(collecting and citing cases). Here, § 315(a)(1) is clear on its face—the operative
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`event is “fil[ing]” a civil action. The ultimate disposition of that civil action is not
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`relevant. There is no ambiguity in the statute, and Cyanotech has not even tried to
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`point to one. The only federal court to address § 315(a)(1) thus far has found it to
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`be unambiguous: “The language of the statute is clear and it contains no exceptions
`
`or qualifications. The operative event is the filing of the civil action, not its
`
`ultimate disposition.” P&G v. Team Techs., Inc., No. 12-cv-552, 2013 U.S. Dist.
`
`LEXIS 128949, at *7 (S.D. Ohio Sept. 10, 2013).
`
`Nevertheless, Cyanotech argues that when Congress said “filed a civil action
`
`challenging the validity of a claim of the patent,” Congress actually meant “filed a
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`civil action challenging the validity of a claim of the patent [that resulted in
`
`adjudication on the merits].” (See Cyanotech 1st Pet. at 3, IPR2013-00401;
`
`Cyanotech 2d Pet. at 3, IPR2013-00404 (arguing in both petitions that because
`
`there was “no adjudication on the merits” of the Hawaii Action, it cannot bar inter
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`partes review).) But that is not the law. Rather, the Board must presume that
`
`when Congress said “filed,” it meant “filed.” Conn. Nat’l Bank v. Germain, 503
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` 
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`5 
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`

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`U.S. 249, 253–54 (1992) (“We have stated time and again that courts must
`
`presume that a legislature says in a statute what it means and means in a statute
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`what it says there.”).
`
`Recognizing this, the Board recently rejected a similar attempt to go beyond
`
`the plain meaning of the term “filed” in § 315(a)(1). In Anova Food, LLC v.
`
`Sandau, the petitioner argued that “filed” should be interpreted to mean “filed and
`
`served”. IPR2013-00114 (No. 17), at 5 (Sept. 13, 2013) (attached hereto as Ex.
`
`2002). The Board declined to read in the limitation and denied the petition, noting
`
`that “Petitioner has not identified any authority requiring that the Board deviate
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`from the plain language of 35 U.S.C. § 315(a)(1).” Id. at 12. Here, Cyanotech
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`would have the Board deviate even further from the plain language, such that
`
`“filed” would mean “filed, served, and litigated to a final decision on the merits.”
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`But this is improper for the same reasons identified in Anova Food, and the Board
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`should deny Cyanotech’s petitions.
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`Further, when Congress drafted § 315(a)(1), it knew the implications of the
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`words it chose. For example, under the now-replaced inter partes reexamination
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`procedures, filing a civil action in district court barred subsequent reexamination of
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`that patent only after the district court entered a “final decision” with respect to
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`6 
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`

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`validity against the challenging party. 37 C.F.R. § 1.907(b) (2001).2 Significantly,
`
`Congress chose not to re-use the “final decision” language when drafting §
`
`315(a)(1). Instead, Congress chose a different triggering event, and made the
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`“filing” of a lawsuit the operative act that cuts off subsequent inter partes review.
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`Further confirming that Congress meant what it said, Congress did use the phrase
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`“final written decision” when drafting the new estoppel provisions of the very
`
`same § 315. See 35 U.S.C. §§ 315(e)(1)–(2).3 If Congress had intended §
`
`                                                            
`2 The old rule 1.907(b) read as follows: “Once a final decision has been
`entered against a party in a civil action arising in whole or in part under 28 U.S.C.
`§ 1338 that the party has not sustained its burden of proving invalidity of any
`patent claim-in-suit, then neither that party nor its privies may thereafter request
`inter partes reexamination of any such patent claim on the basis of issues which
`that party, or its privies, raised or could have raised in such civil action, and an
`inter partes reexamination requested by that party, or its privies, on the basis of
`such issues may not thereafter be maintained by the Office.”
`
` 3
`
`
`
` 35 U.S.C. §§ 315(e)(1) and (2) read as follows:
`“(e) Estoppel.—
`(1) Proceedings before the office.— The petitioner in an inter partes review
`of a claim in a patent under this chapter that results in a final written decision
`under section 318 (a), or the real party in interest or privy of the petitioner, may not
`request or maintain a proceeding before the Office with respect to that claim on
`any ground that the petitioner raised or reasonably could have raised during that
`inter partes review.
`(2) Civil actions and other proceedings.— The petitioner in an inter partes
`review of a claim in a patent under this chapter that results in a final written
`decision under section 318 (a), or the real party in interest or privy of the
`petitioner, may not assert either in a civil action arising in whole or in part under
`section 1338 of title 28 or in a proceeding before the International Trade
`Commission under section 337 of the Tariff Act of 1930 that the claim is invalid
`7 
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`315(a)(1) to be triggered only by a “final decision” on the merits of a validity
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`challenge, it would have said so. See Anova Food, IPR2013-00114 (No. 17), at 5
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`(noting that § 315(b) requires a petitioner to be “served,” whereas § 315(a)(1)
`
`requires only that a civil action be “filed,” and finding that “when Congress meant
`
`for service to be required, it included it in the statute”).
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`Cyanotech suggests that dismissal without prejudice “leaves the parties as
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`though the action had never been brought.” (See Cyanotech 1st Pet. at 3–5,
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`IPR2013-00401; Cyanotech 2d Pet. at 3–5, IPR2013-00404.)4 But Cyanotech
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`misstates the issue. The issue is not whether Cyanotech can re-file in federal court,
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`but whether it can access an entirely different forum—the PTO’s administrative
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`tribunal—in the first place. Here, Congress has set up a clear procedural gate to
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`the PTO’s adjudicative proceeding. Access to that proceeding is entirely
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`independent of whether or not Cyanotech can re-file a previously dismissed
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`                                                                                                                                                                                                
`on any ground that the petitioner raised or reasonably could have raised during that
`inter partes review.”
`
`
`4 As a factual matter, it is not true that Cyanotech’s Hawaii Action was
`dismissed “without prejudice.” (See Cyanotech 1st Pet. at 3, IPR2013-00401;
`Cyanotech 2d Pet. at 3, IPR2013-00404.) Rather, it was dismissed “without
`prejudice to Cyanotech bringing its claims in the pending parallel action in the U.S.
`District Court for the Middle District of Florida.” (Haw. Order Granting Defs.’
`Mot. Dismiss at 24–25, ECF No. 49.) The effect is to leave the Hawaii Action as if
`it was dismissed with prejudice in every venue where the University has not
`waived sovereign immunity—in other words, every venue other than the Middle
`District of Florida.
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`8 
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`validity challenge in federal court. Section 315(a)(1) is about the availability of
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`the PTO forum, not res judicata.
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`The Board must apply § 315(a)(1) as Congress drafted it, not as Cyanotech
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`wishes it would have been drafted. Congress has spoken in unambiguous terms,
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`and all that remains is to apply the law as written. If a civil action challenging
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`validity is filed before a petition for inter partes review, the bar applies—
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`notwithstanding whether the civil action remains pending, has been dismissed with
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`prejudice, or has been dismissed without prejudice.
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`B.
`
`The Legislative History Confirms the Plain Meaning of
`§ 315(a)(1)
`
`Because the language of § 315(a)(1) is clear, “there is no reason to resort to
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`legislative history.” United States v. Gonzalez, 520 U.S. 1, 6 (1997). And,
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`Cyanotech does not cite any legislative history in support of its proposed departure
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`from the plain language. However, a review of the legislative history confirms that
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`§ 315(a)(1) was intended to be a straightforward, easy-to-apply statutory bar:
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` “Parties who want to use inter partes review during litigation . . . are barred
`from seeking or maintaining an inter partes review if they file an action for a
`declaratory judgment that the patent is invalid.” H.R. Rep. No. 112-98, at 47
`(2011).
`
` “Subsections (a) and (b) of sections 315 and 325 impose time limits and
`other restrictions when inter partes and post-grant review are sought in
`relation to litigation. Sections 315(a) and 325(a) bar a party from seeking or
`maintaining such a review if he has sought a declaratory judgment that the
`patent is invalid. This restriction applies, of course, only if the review
`petitioner has filed the civil action. These two subsections (a) do not restrict
`9 
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`the rights of an accused infringer who has been sued and is asserting
`invalidity in a counterclaim.” 157 Cong. Rec. S1375 (daily ed. March 8,
`2011) (statement of Sen. Jon Kyl) .
`
` “The present bill does coordinate inter partes and post-grant review with
`litigation, barring use of these proceedings if the challenger seeks a
`declaratory judgment that a patent is invalid . . . .” 157 Cong. Rec. S1041
`(daily ed. March 1, 2011) (statement of Sen. Jon Kyl).
`
` “The final bill will still bar seeking [inter partes review] or [post-grant
`review] after a declaratory-judgment action has been filed . . . .” 157 Cong.
`Rec. S5429 (daily ed. Sept. 8, 2011) (statement of Sen. Jon Kyl).
`
`It is apparent from these statements, as well as the paucity of debate on this
`
`
`
`
`
`issue, that § 315(a)(1) was intended to mean what it says: filing a civil action
`
`challenging the validity of a patent bars that same party from subsequently seeking
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`inter partes review.
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`C.
`
`Section 315(a)(1)’s Statutory Bar Furthers the Policy Goals of the
`AIA By Preventing Serial Litigation and Tactical Gamesmanship
`
`The AIA, including the new inter partes review, was intended to “create a
`
`
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`timely, cost-effective alternative to litigation” as well as “limit unnecessary and
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`counterproductive litigation costs.” 77 Fed. Reg. 48680, 48734 (Aug. 14, 2012).
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`Congress placed clear “procedural limits” on the new post-grant review
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`proceedings to “prevent abuse of these proceedings for the purposes of harassment
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`or delay.” 157 Cong. Rec. S1374 (daily ed. March 8, 2011) (statement of Sen.
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`Kyl). Section 315(a)(1)’s statutory bar serves this purpose by forcing the infringer
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`10 
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`to choose a venue in which to challenge the patent at the outset.5 An accused
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`infringer who instigates a declaratory judgment action challenging validity
`
`necessarily has all of the information needed to challenge validity at that time, so it
`
`makes sense to require a venue choice then. It also provides the Board with a
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`clear, efficient, and workable procedural limit on access to inter partes review.
`
`
`
`Cyanotech’s position, in contrast, would incentivize not only forum
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`shopping, but forum testing. For example, an infringer could file a declaratory
`
`judgment action against the patentee in a preferred venue, knowing that
`
`maintaining jurisdiction would be questionable. But for the infringer, there would
`
`be no downside—if the case is dismissed, he or she could just file for inter partes
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`review. Or, the infringer could simply file then voluntarily dismiss under Federal
`
`Rule of Civil Procedure 41(a)(1), harassing the patentee while preserving the
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`option of inter partes review. An infringer could even proceed to the merits of a
`
`validity challenge, and then if the litigation was not going well, voluntarily dismiss
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`                                                            
`
`5 The role of § 315(a)(1) as a means to force a venue choice is reinforced by
`the subsection that follows, § 315(a)(2). That section provides that if the accused
`infringer files a civil action challenging validity on or after a petition for inter
`partes review has been filed (as opposed to before), then the civil action is stayed,
`rather than barred. The legislative history explains that § 315(a)(2) was intended
`to allow the accused infringer to, in effect, put a placeholder in his preferred venue.
`See 157 Cong. Rec. S5429 (daily ed. Sept. 8, 2011) (statement of Sen. Jon Kyl)
`(“The purpose of allowing the declaratory-judgment action to be filed is to allow
`the accused infringer to file the first action and thus be presumptively entitled to
`his choice of venue.”).
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`11 
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`under Federal Rule of Civil Procedure 41(a)(2). Because a dismissal under Rule
`
`41(a)(2) is without prejudice unless the court order states otherwise, the infringer
`
`would, if Cyanotech’s position were adopted, be free to thereafter drag the patentee
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`into inter partes review. All of this would be exactly the sort of serial,
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`counterproductive litigation that the AIA was intended to discourage.
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`Cyanotech’s proposed departure from the plain language of the statutory bar
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`could also prove difficult to administer. Cyanotech suggests that the statutory bar
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`should apply only when the prior civil action resulted in “adjudication on the
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`merits” or was dismissed “with prejudice.” But the law governing whether a case
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`should be dismissed with or without prejudice is often unsettled. Of particular
`
`relevance with respect to the Hawaii Action (which was dismissed on the basis of
`
`sovereign immunity), there is disagreement among courts regarding whether a
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`dismissal on the basis of sovereign immunity can be with prejudice. Compare
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`Washington v. Dep’t of State of N.Y., 206 Fed. Appx. 127, 128 (3d Cir. 2006)
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`(affirming order dismissing complaint with prejudice on the basis of sovereign
`
`immunity), and Ard v. FDIC, 770 F. Supp. 2d 1029, 1042 (C.D. Cal. 2011) (“[T]he
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`bar of sovereign immunity is absolute: no other court has the power to hear the
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`case . . . . Thus, the district court did not abuse its discretion in dismissing the
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`action with prejudice.”), with Hart v. United States, 630 F.3d 1085, 1091 (8th Cir.
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`12 
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`2011) (holding that dismissal on the basis of sovereign immunity should have been
`
`without prejudice, but noting conflicting cases).
`
`There is nothing unfair about applying the statutory bar of § 315(a) in
`
`circumstances such as those present in this case. As drafted by Congress, that §
`
`gives a choice to infringers seeking to preemptively attack a patent. Under §
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`315(a)(2), an infringer can file for inter partes review prior to, or even
`
`simultaneously with, filing of a declaratory judgment action and thereby preserve
`
`the ability to proceed in both forums. Or, under § 315(a)(1), the infringer can file a
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`declaratory judgment action first, thereby selecting that forum to challenge validity
`
`and surrendering the right to seek inter partes review. In this case, Cyanotech
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`chose the latter option. Cyanotech is now bound by the consequences of that
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`decision.
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`
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`Moreover, the statutory bar does not leave Cyanotech without an avenue for
`
`relief. To the contrary, Cyanotech has the exact same avenue for relief that it opted
`
`for when it chose to file the Hawaii action—the ability to challenge the validity of
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`the Tso patent in federal district court. The only difference is the specific district
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`court—the Middle District of Florida instead of Hawaii. Such a change of venue is
`
`no basis to depart from the clear statutory framework established by Congress.
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`13 
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`D.
`
`The Macauto Decision Concerns a Different Provision and
`Implicates Different Policy Considerations
`
`Cyanotech relies on Macauto U.S.A. v. Bos GmbH & KG, IPR2012-00004
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`(No. 18) (Jan. 24, 2013) to support its argument. (See Cyanotech 1st Pet. at 4–5,
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`IPR2013-00401; Cyanotech 2d Pet. at 4–5, IPR2013-00404.) Macauto concerned
`
`a different section of the statute—the statute of limitations imposed by 35 U.S.C. §
`
`315(b). Section 315(b) states that an infringer may not seek inter partes review
`
`more than one year after being “served with a complaint alleging infringement of
`
`the patent.” In Macauto, the patentee sued the petitioner’s Taiwanese parent
`
`company for patent infringement, but the patentee voluntarily dismissed its
`
`complaint pursuant to Rule 41(a)(1). IPR2012-00004 (No. 18), at 8. The patentee
`
`then re-filed its infringement lawsuit against the petitioner, the United States-based
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`subsidiary. Id. More than one year after the initial lawsuit but less than one year
`
`after the second lawsuit, the petitioner filed for inter partes review. Id at 2, 8. The
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`patentee argued that the 1-year statute of limitations should be triggered by the first
`
`(and subsequently dismissed) lawsuit against the petitioner’s Taiwanese parent. Id.
`
`at 15. The Board disagreed, finding that the patentee’s voluntary dismissal of the
`
`first lawsuit “nullifi[ed]” the effect of the service of the complaint and thus did not
`
`trigger the statute of limitations. Id. at 15–16.
`
`Macauto does not support Cyanotech, for at least three reasons. First,
`
`Macauto is not controlling because it does not even address the statutory provision
`
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`14 
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`at issue. The issue here is the statutory bar of § 315(a)(1), not the statute of
`
`limitations of § 315(b). The Board’s decision in Anova Food, IPR2013-00114
`
`(No. 17)—not Macauto—governs this case.
`
`Second, extending Macauto to § 315(a)(1) would violate the clear and
`
`unambiguous language of that statute. Such an interpretation is contrary to law.
`
`Carcieri, 555 U.S. at 387; see also Anova Food, IPR2013-00114 (No. 17), at 5–6.
`
`Third, extending Macauto to § 315(a)(1) would not further the policy goals
`
`of the statutory bar. In Macauto, the patentee’s decision to voluntarily dismiss the
`
`first infringement lawsuit gave the patentee a tactical advantage—the patentee
`
`could file a second infringement lawsuit but still take advantage of the earlier filing
`
`date for the purpose of the statute of limitations. The Macauto decision simply
`
`declined to give the patentee that advantage. Here, the policy implications are
`
`different. The statutory bar of § 315(a)(1) is intended to prevent procedural
`
`gamesmanship by the petitioner. But Cyanotech’s interpretation would undermine
`
`that policy by allowing the petitioner to first try out federal court, and then if the
`
`litigation was not going well there, seek inter partes review. As discussed in
`
`Section II.C, supra, this is exactly what the AIA intended to discourage.
`
`
`
`Applying § 315(a)(1) as written is both legally required and good policy.
`
`The Board should deny Cyanotech’s petitions as barred by statute.
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`15 
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`III. CONCLUSION
`
`For at least the foregoing reasons, Cyanotech’s petitions are barred by 35
`
`U.S.C. § 315(a)(1) and the Board must deny inter partes review of the Tso patent.
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`Respectfully submitted,
`
`
`s/Iain A. McInyre
`Iain A. McInyre (Back-up Counsel)
`Registration No. 40,377
`CARLSON CASPERS
`225 South Sixth Street, Suite 4200
`Minneapolis, MN 55402
`Telephone: (612) 436-9600
`Facsimile: (612) 436-9605
`imcintyre@carlsoncaspers.com
`
`Counsel for Patent Owner The Board of
`Trustees of the University of Illinois
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`
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`Dated: October 2, 2013.
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`16 
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`EXHIBIT LIST
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`
`DESCRIPTION
`
`Complaint, Civ. No. 12-352, Dkt. No. 1 (District of Hawaii,
`June 20, 2012).
`
`Decision entered September 13, 2013 by the Patent Trial
`and Appeal Board denying Inter Partes Review 37 C.F.R. §
`42.108 in Anova Foods, LLC v. Sandau, IPR2013-00114
`(No. 17).
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`17 
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`UNIVERSITY
`EXHIBIT NO.
`Exhibit 2001
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`Exhibit 2002
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that on October 2,
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`2013, a true and correct copy of the foregoing Preliminary Response of Patent
`
`Owner The Board of Trustees of the University of Illinois and Exhibits 2001 and
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`2002 were served via electronic mail upon the following:
`
`Joseph A. Rhoa (Lead Counsel)
`Registration No. 37,515
`NIXON & VANDERHYE P.C.
`901 North Glebe Road, 11th Floor
`Arlington, VA 22203-1808
`Telephone: (703) 816-4043
`Email: jar@nixonvan.com
`
`George E. Darby (Back-up Counsel)
`PARADISE PATENT SERVICES, INC.
`95 – 1045 Alakaina St.
`Mililani, HI 96789
`Telephone: (808) 626-1300
`Email: cyan@teleport-asia.com
`
`Counsel for Petitioner Cyanotech Corporation, including
`its subsidiary, Nutrex Hawaii, Inc.
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`s/Iain A. McIntyre
`Iain A. McIntyre (Back-up Counsel)
`Registration No. 40,377
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`18 
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