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`Paper No._______
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`BIODELIVERY SCIENCES INTERNATIONAL, INC.
`Petitioner
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`v.
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`RB PHARMACEUTICALS LIMITED
`Patent Owner
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`Case No. IPR2014-00325
`Patent 8,475,832
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`PETITIONER’S REPLY IN SUPPORT OF ITS MOTION TO EXCLUDE
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`As explained in the Motion to Exclude, the statements quoted by RB from
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`Exhibit 2043 concern the difficulty in designing a film with seven elements recited
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`in claims of the unrelated ‘019 patent, i.e., [1] thinness, [2] flexibility, [3] residence
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`time, [4] adhesion, [5] bioerosion, [6] fast onset/within 30 minutes, and [7]
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`directional delivery. Paper No. 35, at 4. As illustrated below, each of these
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`elements is explicitly recited in claim 1 of the ‘019 patent:
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`On the other hand, none of these seven elements is recited in the claims challenged
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`in this proceeding, as illustrated by the following comparison of the independent
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`claims:
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`RB’s suggestion in its Opposition—that the claims challenged here
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`somehow claim the same features as those recited in the ‘019 claims—highlights
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`RB’s attempt to rewrite the challenged claims in this proceeding.
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`For example, in its Motion to Exclude, BDSI correctly pointed out that the
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`claims of the ‘019 patent share no common claim language with the claims
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`challenged in this proceeding, except for “film” and “profile.” Paper No. 35, at 6.
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`Rather than point to any claim language in common or any other relationship
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`between the claims that would make Exhibit 2043 relevant here—neither of which
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`exists—RB simply contends that the ‘019 patent and ‘832 patent are both directed
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`to “a film dosage form providing a desired level of a pharmaceutical active to a
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`subject via oral transmucosal absorption…” Paper No. 37, at 6.
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`This argument is troubling for at least two reasons. First, RB seems to
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`suggest that if the specifications of two patents are directed to the same subject
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`matter—which, in this case, they are not—their claimed subject matter is
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`necessarily the same. There is no support for this contention.
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`Second, in support of the alleged subject matter in common, RB quotes
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`claim language from claim 1 of the ‘019 patent, but does not quote any language
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`from the claims challenged in this proceeding. This is because, as illustrated
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`above, the challenged claims in this proceeding do not recite any of the seven
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`recited features at issue in Exhibit 2043.
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`Obviously aware that the challenged claims do not recite any of these seven
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`features, RB appears to ask this Board to ignore the fundamental principle of claim
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`construction law by ignoring the claim language. Strikingly, RB contends that the
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`fact that the ‘019 and ‘832 claims “might use different ‘language’ does not change
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`[the] fact” that the two patents are allegedly directed to the same thing. Paper No.
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`37, at 6-7. However:
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`The claim is a statutory requirement, prescribed for the very purpose
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`of making the patentee define precisely what his invention is; and it is
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`unjust to the public, as well as an evasion of the law, to construe it in a
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`manner different from the plan import of its terms.
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`White v. Dunbar, 119 U.S. 47, 52 (1886). RB seems to be asking the Board to
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`import multiple limitations into the recited claim language in the ‘832 challenged
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`claims in order to find some connection between these claims and those of the ‘019
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`patent. No such connection exists.
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`Accordingly, for the reasons explained above and in BDSI’s Motion to
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`Exclude (Paper No. 35), RB’s Exhibit 2043 should be excluded as inadmissible
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`under Federal Rules of Evidence 401 and 403.
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`Dated: March 17, 2015
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`Respectfully submitted,
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`By: /Danielle L. Herritt/
`Danielle L. Herritt (Reg. No. 43,670)
`Kia L. Freeman (Reg. No. 47,577)
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of the foregoing PETITIONER’S
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`REPLY IN SUPPORT OF ITS MOTION TO EXCLUDE, including this
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`Certificate of Service, was electronically served on March 17, 2015 by transmitting
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`a copy to lead counsel James Bollinger at james.bollinger@troutmansanders.com
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`and to backup counsel Daniel Ladow at daniel.ladow@troutmansanders.com in
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`accordance with the consent set forth in RB Third Amended Mandatory Notice
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`Information.
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`By:
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`/Danielle L. Herritt/
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`Danielle L. Herritt
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`Registration No. 43,670
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`Attorney for the Petitioner
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`ME1 20010336v.1
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