`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`PHIGENIX, INC.
`Petitioner
`
`IMMUNOGEN, INC.
`Patent Owner
`
`Case IPR20l4—O0676
`
`Patent 8,337,856 B2
`
`PHIGENIX, INC.’S REPLY TO IMMUNOGEN, INC.’S OPPOSITION TO
`
`THE MOTION TO EXCLUDE
`
`UNDER 37 C.F.R. § 42.64(c)
`
`Mail Stop "PATENT BOARD"
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`
`P.O. BOX 1450
`
`Alexandria, VA 223 13-1450
`
`
`
`PHIGENIX, INC.’S REPLY TO IMMUNOGEN, INC.’S OPPOSITION TO THE MOTION TO EXCLUDE
`UNDER 37 C.F.R. § 42.64(c)
`CASE IPR2014-00676
`
`Patent Owner ImmunoGen, Inc.’s (“ImmunoGen”) filing of Exhibits 2347
`
`and 2348 (“the Belated Exhibits”) on June 18, 2015 does not cure ImmunoGen’s
`
`failure to authenticate the Belated Exhibits.
`
`ImmunoGen’s Opposition does not dispute the following facts:
`
`(1) the Belated Exhibits filed June 18, 2015 do not show any internal
`
`markers indicating their alleged origin as “IMS” data or market reports from
`
`€LIMS79;
`
`(2) ImmunoGen’s Certificate of Service served with its Supplemental
`
`Evidence on February 12, 2015 (Ex. 1039) does not identify the “confidential
`
`supplemental evidence” produced on that date as “IMS” data;
`
`(3) the Supplemental Declaration of John C. Jarosz (“the Supplemental
`
`Declaration”), dated February 10, 2015, and served on February 12, 2015 (Ex.
`
`1040) does not reference or identify the “confidential supplemental evidence”
`
`produced on February 12, 2015 as “IMS” data or as market reports from “IMS.”
`
`Accordingly, ImmunoGen has failed to provide any authentication of the
`
`Belated Exhibits as data or market reports originating from “IMS.”
`
`
`
`PHIGENIX, INC.’S REPLY TO IMMUNOGEN, INC.’S OPPOSITION TO THE MOTION TO EXCLUDE
`UNDER 37 C.F.R. § 42.64(c)
`CASE IPR2014-00676
`
`In fact, paragraph 6 of the Supplemental Declaration admits that Exhibits
`
`2240-2244, 2256, 2319, and 2320 are “compilations of data.” Therefore, none of
`
`Exhibits 2240-2244, 2256, 2319, and 2320 are original to “IMS,” and do not
`
`constitute market reports produced by “IMS.” Although the Supplemental
`
`Declaration refers to “[d[ata from IMS” it does not reference or identify the
`
`contents of the Belated Exhibits as “IMS” data. Consequently, there has been no
`
`authentication of the Belated Exhibits as “IMS” data by John C. Jarosz, the witness
`
`purportedly relying on such data.
`
`Under F.R.E. 90l(b)(l) testimony of a witness with knowledge is sufficient
`
`to satisfy the requirement that an item is what it is claimed to be. Yet ImmunoGen
`
`has conspicuously failed to provide any such statement from John C. Jarosz that
`
`the data contained in the Belated Exhibits originates from “IMS” or constitutes
`
`market reports by “IMS.”
`
`The Belated Exhibits remain unauthenticated as original materials sourced
`
`from “IMS.” Under F.R.E. 1006 the proponent of a summary or chart “must make
`
`the originals or duplicates available.” Furthermore, under F.R.E. 1002 “[a]n
`
`original writing, recording, or photograph is required in order to prove its content.”
`
`As matters stand, the Belated Exhibits fail on both counts. In addition, since the
`
`
`
`PHIGENIX, INC.’S REPLY TO IMMUNOGEN, INC.’S OPPOSITION TO THE MOTION TO EXCLUDE
`UNDER 37 C.F.R. § 42.64(c)
`CASE IPR2014—00676
`
`Belated Exhibits are unauthenticated as market reports, no hearsay exception can
`
`8 apply to evidence relying on the Belated Exhibits.
`
`Accordingly, for the reasons stated above and in the Motion to Exclude,
`
`Phigenix respectfully requests that the Board exclude the Belated Exhibits
`
`(Exhibits 2347 and 2348), Exhibits 2240, 2241, 2242, 2243, 2244, 2256, 2319 and
`
`2320, and paragraphs 12, 14, 44, 45, 46, 55, 56, 57, 58, 107 ofthe Jarosz
`
`Declaration (Exhibit 2131) from evidence.
`
`ANDREWS KURTH, LP
`
`4
`
`A
`
`ttorney P » - °
`Phigenix, Inc.
`Registration No. 48,328
`
`Date: June 25, 2015
`
`1350 I Street, NW, Suite 1100
`Washington, DC 20005
`(202-662-3042)
`
`
`
`PHIGENIX, INC.’S REPLY TO IMMUNOGEN, INC.’S OPPOSITION TO THE MOTION TO EXCLUDE
`UNDER 37 C.F.R. § 42.64(c)
`CASE IPR2014-00676
`
`CERTIFICATE OF SERVICE 137 C.F.R. § 42.6gen
`
`The undersigned hereby certifies that the above-captioned “Phigenix Inc.’s
`
`Reply to ImmunoGen, Inc.’s Opposition to The Motion to Exclude Under 37
`
`C.F.R. § 42.64(c)” was served Via electronic mail upon the following parties:
`
`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.corn
`
`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
`sk f.co1n
`
`Date: June 25, 2015
`
`1350 I Street, NW, Suite 1100
`
`Washington, DC 20005
`(202-662-3042)
`
`V
`
`* ttorney
`Phigenix, Inc.
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