From:
`To:
`
`Cc:
`Subject:
`Date:
`
`Cutri, Elizabeth A.
`Cunningham, Laura; Hollis, Amanda; De Vries, Mike W.; J. Mitchell Jones; Holland, Elizabeth J.; Hardman,
`Cynthia Lambert
`Farmer, Dean; Graves, Jon
`RE: IPR2014-00003
`Thursday, September 25, 2014 12:01:00 PM
`
`Laura,
`
`Thank you for speaking with me yesterday. AKBM does not agree that Exhibit 1107 is not relevant.
`As I stated during the call, Neptune’s representation to the FDA that Beaudoin is the “processing
`techniques used” to make “Neptune Krill Oil™,” which the ’351 patent says is the “present
`invention,” is relevant to the issue of inherent anticipation. A product that is the natural result of a
`prior art process is not patentable. You stated that Exhibit 1107 does not show that Beaudoin is
`used to make any Neptune product. When I asked you to explain this, you did not provide a
`response.
`
`You stated that the NKO trademarked product is not the subject of Exhibit 1107. I pointed you to
`the seventh page of the PDF, which states, “Appendix G: processing techniques used: Neptune Krill
`Oil™.” You had no response, other than to say that you did not have the document in front of you,
`needed to look at it again, and were not sure what products it refers to. As I stated during the call, if
`Neptune contends that Exhibit 1107 does not relate to the same “Neptune Krill Oil™” referred to at
`column 19, line 46 of the ’351 patent, Petitioners would like to know that. If this is Neptune’s
`position, please let us know, and explain the basis therefor. I inquired as to whether Neptune has
`submitted any other document to the FDA as evidence of the process for making NKO. You said you
`did not know of any such document.
`
`In response to my question about why Neptune contends Exhibit 1107 is inadmissible under Federal
`Rule of Evidence 403, you stated that Exhibit 1107 and/or Petitioners’ reliance on it was misleading
`or confusing. We disagree. Petitioners’ reply brief contains only a few words about the document,
`which are accurate. You also stated that it would be a waste time for the Board to “wade through
`the hundreds of pages” of the document and figure out what it means. We disagree with this as
`well. The import of the document is readily apparent, and the Board can quickly and easily identify
`the most useful pages, including because Petitioners highlighted relevant portions. Any minor time
`investment required to read the relevant portions of the exhibit does not substantially outweigh its
`probative value.
`
`Neptune should withdraw its objection to Exhibit 1107. If Neptune declines to do so and moves to
`exclude, Petitioners will oppose.
`
`Liz
`
`
`
`Elizabeth A. Cutri (née Nemo)
`Kirkland & Ellis LLP
`300 North LaSalle
`
`1
`
`AKBM 1113
`
`

`
`Chicago, Illinois 60654
`Tel: (312) 862-7160
`Fax: (312) 862-2200
`
`From: Cunningham, Laura [mailto:lcunningham@cooley.com]
`Sent: Wednesday, September 24, 2014 11:14 AM
`To: Cutri, Elizabeth A.; Hollis, Amanda; De Vries, Mike W.; J. Mitchell Jones; Holland, Elizabeth J.;
`Hardman, Cynthia Lambert
`Cc: Farmer, Dean; Graves, Jon
`Subject: RE: IPR2014-00003
`
`Liz,
`
`How about 4:15 ET? We can use this dial-in:
`
`Tel: 1-888-453-4412
`Passcode: 731192
`
`Regards,
`Laura
`
`Laura J. Cunningham
`Cooley LLP
`1299 Pennsylvania Avenue, NW • Suite 700
`Washington, DC 20004-2400
`Direct: +1 202 728 7072 • Fax: +1 202 842 7899
`Email: lcunningham@cooley.com • www.cooley.com
`
`Admission to the DC bar pending
`
`From: Cutri, Elizabeth A. [mailto:elizabeth.cutri@kirkland.com]
`Sent: Wednesday, September 24, 2014 11:49 AM
`To: Cunningham, Laura; Hollis, Amanda; De Vries, Mike W.; J. Mitchell Jones; Holland, Elizabeth J.;
`Hardman, Cynthia Lambert
`Cc: Farmer, Dean; Graves, Jon
`Subject: RE: IPR2014-00003
`
`Laura,
`
`We propose a meet-and-confer today at any time after 2 pm Central.
`
`Liz
`
`2
`
`
`
`Elizabeth A. Cutri (née Nemo)
`Kirkland & Ellis LLP
`300 North LaSalle
`Chicago, Illinois 60654
`Tel: (312) 862-7160
`Fax: (312) 862-2200
`
`
`

`
`From: Cunningham, Laura [mailto:lcunningham@cooley.com]
`Sent: Tuesday, September 23, 2014 8:31 PM
`To: Hollis, Amanda; De Vries, Mike W.; Cutri, Elizabeth A.; J. Mitchell Jones; Holland, Elizabeth J.;
`Hardman, Cynthia Lambert
`Cc: Farmer, Dean; Graves, Jon
`Subject: IPR2014-00003
`
`Counsel:
`
`Pursuant to 37 C.F.R. 42.64(b)(1), Neptune hereby provides notice of its objections to AKBM Ex.
`1107, which was served with Petitioners’ Reply on September 18, 2014. The correspondence
`between Neptune and the FDA contained in Ex. 1107 is irrelevant to the alleged anticipation by
`Beaudoin, and Petitioners’ argument regarding this exhibit is misleading. Neptune intends to move
`to exclude this exhibit pursuant to Federal Rules of Evidence 402 and/or 403.
`
`Neptune is willing to meet and confer with Petitioners regarding its objections if Petitioners wish to
`do so.
`
`Regards,
`Laura
`
`Laura J. Cunningham
`Cooley LLP
`1299 Pennsylvania Avenue, NW • Suite 700
`Washington, DC 20004-2400
`Direct: +1 202 728 7072 (cid:891) Fax: +1 202 842 7899
`Email: lcunningham@cooley.com (cid:891) www.cooley.com
`
`Admission to the DC bar pending
`
`________________________________
`
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