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` EXHIBIT D
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`EXHIBIT D
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`________________________________________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`________________________________________________
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`PHIGENIX, INC.
`Petitioner
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`v.
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`IMMUNOGEN, INC.
`Patent Owner
`
`
`Case IPR2014-00676
`Patent 8,337,856 B2
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`PHIGENIX, INC.’S OBJECTIONS TO NEW EVIDENCE PRODUCED BY
`IMMUNOGEN, INC. ON FEBRUARY 12, 2015
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`HOU:3528112.1
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`PHIGENIX, INC.’S OBJECTIONS TO NEW EVIDENCE PRODUCED BY IMMUNOGEN, INC. ON
`FEBRUARY 12, 2015
`CASE IPR2014-00676
`
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`Petitioner Phigenix, Inc. (“Phigenix”) objects under Federal Rules of
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`Evidence (“FRE”) and 37 C.F.R. § 42.64(b)(1) to the admissibility of the new
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`evidence designated Protective Order Materials (“Challenged Materials”), served
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`by Patent Owner ImmunoGen, Inc. (“ImmunoGen”) on February 12, 2015, with its
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`ImmunoGen, Inc.’s Supplemental Evidence under 37 C.F.R. § 42.64(b)(2).
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`Phigenix serves ImmunoGen with these objections to provide notice to
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`ImmunoGen that Phigenix may move to exclude the Challenged Materials under
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`37 C.F.R. § 42.64(c), or if deemed appropriate request that the Board grant leave to
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`file a motion to strike inadmissible evidence, unless ImmunoGen cures the defects
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`of the Challenged Materials identified herein.
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`I.
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`Identification of Challenged Materials and Grounds for
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`Objections
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`1) Protective Order Material - Supp. Evidence - IMS pt. 1
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`“Protective Order Material - Supp. Evidence - IMS pt. 1” purports to be a
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`photocopy of a chart of data related to a variety of commercial pharmaceuticals.
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`There is no indication of the origin or creator of the chart or the data. No
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`foundation is provided for the reliance on this data. The Declaration of John C.
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`Jarosz signed February 10, 2015, makes no reference to this chart of data. Phigenix
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`HOU:3528112.1
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`1
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`
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`PHIGENIX, INC.’S OBJECTIONS TO NEW EVIDENCE PRODUCED BY IMMUNOGEN, INC. ON
`FEBRUARY 12, 2015
`CASE IPR2014-00676
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`objects to this chart of data since it does not appear to be a “duplicate” as defined
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`by FRE 1001(e) insofar as the chart is not “a copy . . . which accurately reproduces
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`the original.” Thus, under FRE 1003, the chart is inadmissible because it is not a
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`“duplicate.” Phigenix objects that this chart of data is inadmissible as hearsay
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`under FRE 802. In addition, this chart is inadmissible because it is not qualified to
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`be the basis for an expert opinion under FRE 703. This chart is also inadmissible
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`under FRE 401/402 because it lacks relevance and probative value.
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`In addition, Phigenix objects that this new evidence produced on February
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`12, 2012 has not been produced in accordance with 37 C.F.R. § 42.63. Phigenix
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`further objects that the new evidence should have been served with the Patent
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`Owner Response and therefore is inadmissible due to its late production which has
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`prejudiced the ability of Phigenix to formulate a response. Phigenix reserves the
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`right to file a motion to strike the new evidence as inadmissible at an appropriate
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`time.
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`2) Protective Order Material - Supp. Evidence - IMS pt. 2
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`“Protective Order Material - Supp. Evidence - IMS pt. 2” purports to be a
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`photocopy of a chart of data related to a variety of commercial pharmaceuticals.
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`There is no indication of the origin or creator of the chart or the data. No
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`foundation is provided for the reliance on this data. The Declaration of John C.
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`HOU:3528112.1
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`2
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`
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`PHIGENIX, INC.’S OBJECTIONS TO NEW EVIDENCE PRODUCED BY IMMUNOGEN, INC. ON
`FEBRUARY 12, 2015
`CASE IPR2014-00676
`
`Jarosz signed February 10, 2015, makes no reference to this chart of data. Phigenix
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`objects to this chart of data since it does not appear to be a “duplicate” as defined
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`by FRE 1001(e) insofar as the chart is not “a copy . . . which accurately reproduces
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`the original.” Thus, under FRE 1003, the chart is inadmissible because it is not a
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`“duplicate.” Phigenix objects that this chart of data is inadmissible as hearsay
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`under FRE 802. In addition, this chart is inadmissible because it is not qualified to
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`be the basis for an expert opinion under FRE 703. This chart is also inadmissible
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`under FRE 401/402 because it lacks relevance and probative value.
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`In addition, Phigenix objects that this new evidence produced on February
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`12, 2012 has not been produced in accordance with 37 C.F.R. § 42.63. Phigenix
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`further objects that the new evidence should have been served with the Patent
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`Owner Response and therefore is inadmissible due to its late production which has
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`prejudiced the ability of Phigenix to formulate a response. Phigenix reserves the
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`right to file a motion to strike the new evidence as inadmissible at an appropriate
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`time.
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`HOU:3528112.1
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`3
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`PHIGENIX, INC.’S OBJECTIONS TO NEW EVIDENCE PRODUCED BY IMMUNOGEN, INC. ON
`FEBRUARY 12, 2015
`CASE IPR2014-00676
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`II. Conclusion
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`To the extent ImmunoGen fails to correct the defects associated with the
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`Challenged Materials in view of Phigenix’s objections herein, Phigenix may file a
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`motion to exclude the Challenged Materials under 37 C.F.R. § 42.64(c), or if
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`deemed appropriate request that the Board grant leave to file a motion to strike
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`inadmissible evidence.
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`Date: February 20, 2015
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`1350 I Street, NW, Suite 1100
`Washington, D.C. 20005
`(202) 662-3042
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`ANDREWS KURTH, LLP
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`/Gregory L. Porter/
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`Gregory L. Porter
`Registration No. 40,131
`On behalf of
`Ping Wang, M.D. Esq.
`Lead Attorney for Petitioner
`Phigenix, Inc.
`Registration No. 48,328
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`HOU:3528112.1
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`4
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`PHIGENIX, INC.’S OBJECTIONS TO NEW EVIDENCE PRODUCED BY IMMUNOGEN, INC. ON
`FEBRUARY 12, 2015
`CASE IPR2014-00676
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`CERTIFICATE OF SERVICE (37 C.F.R. § 42.6(e))
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`The undersigned hereby certifies that the above-captioned “Phigenix Inc.’s
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`Objections to New Evidence Produced by ImmunoGen, Inc. on February 12, 2015”
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`was served via electronic mail upon the following parties:
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`Eldora L. Ellison, Ph.D.
`Sterne, Kessler, Goldstein & Fox P.L.L.C.
`1100 New York Ave., N.W.
`Washington, D.C. 20005-3934
`Tel: (202) 772-8508
`Fax: (202) 371-2540
`eellison@skgf.com
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`
`Eric K. Steffe
`Sterne, Kessler, Goldstein & Fox P.L.L.C.
`1100 New York Ave., N.W.
`Washington, D.C. 20005-3934
`Tel: (202) 772-8625
`Fax: (202) 371-2540
`esteffe@skgf.com
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`ANDREWS KURTH, LLP
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`/Gregory L. Porter/
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`Gregory L. Porter
`Partner
`On behalf of
`Ping Wang, M.D. Esq.
`Lead Attorney for Petitioner
`Phigenix, Inc.
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`Date: February 20, 2015
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`600 Travis, Suite 4200
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`Houston, Texas 77002
`(713) 220-4621
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`HOU:3528112.1
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`5
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