IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
`
`Mylan Pharmaceuticals Inc., Petitioner
`
`v.
`
`Nissan Chemical Industries Ltd.
`Patent Owner
`_____________________
`
`Inter Partes Review No.: IPR2015-01069
`
`PETITIONER’S MOTION TO EXCLUDE NISSAN’S EXHIBITS UNDER
`37 C.F.R. 42.64(c)
`
`
`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
`
`Mylan Pharmaceuticals Inc., Petitioner
`
`v.
`
`Nissan Chemical Industries Ltd.
`Patent Owner
`_____________________
`
`Inter Partes Review No.: IPR2015-01069
`
`PETITIONER’S MOTION TO EXCLUDE NISSAN’S EXHIBITS UNDER
`37 C.F.R. 42.64(c)
`
`
`
`I.
`
`Introduction
`Pursuant
`to 37 C.F.R. §§ 42.62 and 42.64(c), Petitioner Mylan
`
`Pharmaceuticals Inc. (“MPI”) respectfully moves to exclude Exhibit Nos. 2035-36,
`
`2038-41, 2046, 2049, and 2052 (collectively, the “Challenged Exhibits”) submitted
`
`by Patent Owner Nissan Chemical Industries Ltd. (“Nissan”) in alleged support for
`
`its Reply Regarding Petitioner’s Failure to Name a Real Party-In-Interest (“Reply”)
`
`(Paper 21). MPI also moves to exclude Nissan’s references to certain portions of
`
`Mr. Thomas Jenkins’s deposition testimony (Ex. 2031) from the Reply. As
`
`explained below, the Challenged Exhibits and deposition testimony are inadmissible
`
`under the Federal Rules of Evidence (“FRE”) and therefore should be excluded
`
`and/or stricken from Nissan’s Reply.
`
`II. MPI Timely Objected to the Challenged Exhibits
`Pursuant to C.F.R. § 42.64, MPI timely objected to the Challenged Exhibits
`
`and Nissan’s references to Mr. Jenkins’s deposition testimony on multiple grounds.
`
`See Petitioner’s Evidentiary Objections Pursuant to 37 C.F.R. § 42.64 (attached as
`
`App. A) at 3-6. In response, on October 5, 2015, Nissan submitted supplemental
`
`evidence in the form of a Declaration by its outside counsel, Kathleen B. Carr
`
`(attached as App. B). Nissan’s evidence does not cure Petitioner’s evidentiary
`
`objections as stated herein.
`
`1
`
`
`
`III. The Challenged Exhibits are Inadmissible under the FRE
`Exhibit 2035, Entitled “Articles of Association of Mylan N.V.”
`
`Nissan's counsel asserts that Ex. 2035 represents Mylan N.V.’s (“MNV”)
`
`Articles of Association allegedly authorizing it to conduct certain activities in the
`
`United States. Reply at 3-4. This exhibit is a legal document prepared under Dutch
`
`Law.
`
`See Ex. 2035, §§ 1.02, 1.03, 4.01 and 12.01. Yet, Nissan offers no
`
`accompanying testimony from any witness having specialized knowledge about
`
`Dutch corporate law and the meaning of the exhibit’s contents under such law
`
`relative to the legal and factual issues at hand.
`
`Instead, Nissan’ counsel merely
`
`asserts that Ex. 2035 (a legal document prepared under Dutch law) shows that MNV
`
`is not a “non-operational” company under U.S. law. Here, Nissan’s counsel
`
`inappropriately attempts to substitute its own opinion for that of a competent expert
`
`capable of providing the necessary testimony evidence establishing the relevance of
`
`Ex. 2035 to the legal and factual issues in dispute. See e.g., Invitrogen Corp. v.
`
`Clontech Labs., Inc., 429 F.3d 1052, 1068 (Fed. Cir. 2005); In re Schulze, 346 F.2d
`
`600, 602 (C.C.P.A. 1965). Accordingly, the relevance of Ex. 2035 has not been
`
`properly shown and is therefore inadmissible under FRE 401-03.
`
`Moreover, Ex. 2035 constitutes inadmissible hearsay, as Nissan offered no
`
`supplemental evidence indicating that the exhibit falls within the scope of any
`
`2
`
`
`
`exceptions to the rule against hearsay. Finally, Nissan offered no supplemental
`
`evidence showing proper authentication of Ex. 2035 as required under FRE 901.
`
`Exhibit 2036, Entitled “Mylan N.V. – Other”
`
`Exhibit 2036 purports to contain an internet posting of a transcript from a
`
`conference call taken from an Internet source. Nissan offers Ex. 2036 as alleged
`
`proof that MNV is not a “non-operational holding company” and was involved in
`
`other IPR proceedings (Reply at 4), and as evidence of MNV’s “active business
`
`activities.” In doing so, Nissan relies on several pages of a transcript attributing
`
`alleged statements from four MNV corporate officers. Reply at 4-5 (citing Ex. 2036
`
`at 8-11, 18-19). The cited portions of Ex. 2036 constitute inadmissible hearsay and
`
`do not fall within the scope of any exception thereto. Moreover, Ex. 2036 does not
`
`contain any information regarding its author, or the method it was transcribed. See
`
`Novak v. Tucows, Inc., No 06-CV-1909, 2007 U.S. Dist. LEXIS 21269, at *15-16
`
`(E.D.N.Y. Mar. 26, 2007) (“Where postings from internet [sic] websites are not
`
`statements made by declarants testifying at trial and are offered to prove the truth of
`
`the matter asserted, such postings generally constitute hearsay”), aff’d, 330 Fed.
`
`Appx. 204 (2d Cir. 2009). Accordingly, Ex. 2036 should excluded as evidence.
`
`Exhibit 2038, Partial LinkedIn Page
`
`Exhibit 2038 purports to be a partial LinkedIn Internet page of Steve
`
`Flynn. However, this exhibit was not filed in accordance with the Board’s rules
`
`3
`
`
`
`because Nissan failed to cite or otherwise rely on this exhibit in its Reply. This alone
`
`is
`
`sufficient grounds
`
`for
`
`the exclusion of Ex. 2038 from the Board’s
`
`consideration. See 37 CFR § 42.6(c); see also 37 CFR § 42.63(a) (“All evidence
`
`must be filed in form of an exhibit.”); 37 CFR § 42.7 (The Board may expunge any
`
`exhibit not submitted in accordance with the Board’s rules).
`
`Exhibit 2039, MYPAC FEC Form 3X
`
`Nissan failed to cite or otherwise rely on Ex. 2039 in its Reply. As is the case
`
`with Ex. 2038 discussed above, and for the reasons expressed therein, Ex. 2039
`
`should be excluded from this dispute and expunged from the record.
`
`Exhibit 2040, Walker, J., “Drug-Industry Rule Would Raise
`Medicare Costs,” The Wall Street Journal, Aug. 31, 2015
`
`Exhibit 2040 purports to be a Wall Street Journal Internet article by Joseph
`
`Walker. Nissan offers the statements made in the article for the alleged fact that
`
`MNV itself has filed its own IPR challenges. Reply at 4. Nissan also relies on
`
`statements from an MNV officer, Ms. Heather Bresche. Id.
`
`Internet articles are considered unauthenticated hearsay. See Johnson v.
`
`Prince George’s County, No. DKC 10-0582, 2011 U.S. Dist. LEXIS 20343, at *28-
`
`30 (D. Md. Mar. 1, 2011) (citations omitted). In fact, Internet articles are considered
`
`“analogous to the newspaper articles that courts [] have frequently recognized as
`
`hearsay.” Id; see also Jones v. Dolgencorp, Inc., 789 F. Supp. 2d 1090, 1098 (N.D.
`
`Iowa 2011) (newspaper articles considered “classic hearsay”). Further, in Dobson
`
`4
`
`
`
`v. Deutsche Bank, A.G., 206 F. Supp. 2d 590, 594 (S.D.N.Y. 2002), the Court ruled
`
`that news articles offered to prove the fact that defendant made statements attributed
`
`to him therein were considered inadmissible hearsay because none of the hearsay
`
`exceptions applied.
`
`Likewise,
`
`the statements on which Nissan relies (Ex. 2040 at 4) are
`
`inadmissible as classic hearsay because they are out-of-court statements in the form
`
`of an Internet news article offered to prove the truth of the matter asserted therein.
`
`None of these statements fall within any exception to the hearsay rule. Accordingly,
`
`Ex. 2040 should be excluded as evidence in the present case.
`
`In addition, Ex. 2040 is also inadmissible because it is an unauthenticated
`
`printout from an Internet website. Nissan has proffered neither testimony nor sworn
`
`statements attesting to the authenticity of the contents of this exhibit by either an
`
`individual or company representative hosting the websites, or any other party, at or
`
`about the time Nissan originally accessed it. See, e.g., Costa v. Keppel Singmarine
`
`Dock-Yard PTE, Ltd., No. CV 01-11015 MMM (Ex), 2003 U.S. Dist. LEXIS 16295,
`
`at *29 n.74 (C.D. Cal. Apr. 25, 2003) (declining to consider evidence downloaded
`
`from corporation’s website in the absence of testimony from the corporation
`
`authenticating such documents) (citing United States v. Jackson, 208 F.3d 633, 638
`
`(7th Cir. 2000)). Rather, Nissan improperly attempts to authenticate the exhibit after
`
`the fact by allegedly accessing it from the Internet months later and then comparing
`
`5
`
`
`
`its content to the original exhibit, representing only that the original “shows to be
`
`substantively identical” to what Nissan viewed on October 5, 2015. Accordingly,
`
`Ex. 2040 should be excluded.
`
`Exhibit 2041, Entitled “Mylan N.V.”
`
`Nissan failed to cite or otherwise rely on Ex. 2041 in its Reply. As explained
`
`with Ex. 2038 discussed above, and for the reasons expressed therein, Ex. 2041
`
`should be excluded from this dispute and expunged from the record.
`
`Exhibit 2046, Entitled “Bloomberg Transcript”
`
`Nissan failed to cite or otherwise rely on Ex. 2046 in its Reply. As explained
`
`with Ex. 2038 discussed above, and for the reasons expressed therein, Ex. 2046
`
`should be excluded from this dispute and expunged from the record.
`
`Exhibit 2049, Alleged LinkedIn Internet Profiles
`
`Exhibit 2049 purports to be LinkedIn Internet profiles from three individuals.
`
`Nissan offers these alleged profiles for the truth of the matter asserted therein – i.e.,
`
`to indicate each individual’s alleged employer and his or her respective job duties.
`
`Reply at 2-3. However, nothing in the LinkedIn profiles indicate who authored
`
`them, or that the representations made therein are accurate.1 Further, Nissan offered
`
`1 The LinkedIn profiles are manifestly inaccurate, indicating that their alleged
`
`relationship with MNV existed prior to February 2015. But, as Nissan admits, MNV
`
`6
`
`
`
`no supplemental evidence that the individuals themselves had created the pages or
`
`were responsible for their respective content. Therefore, Ex. 2049 constitutes
`
`inadmissible hearsay because it consists of out-of-court statements that Nissan offers
`
`to prove the truth of the matter asserted therein.
`
`Indeed, courts have ruled that self-edited online articles and profiles, such as
`
`Ex. 2049, are inadmissible hearsay and inherently untrustworthy without
`
`supplemental evidence to indicate the author of the document and veracity of the
`
`statements therein. United States v. Vayner, 769 F.3d 125, 132 (2d Cir. 2014);
`
`Linscheid v. Natus US Med., Inc., No. 3:12-cv-67-TCB, 2015 U.S. Dist. LEXIS
`
`40255, at *14-15 (N.D. Ga. Mar. 30, 2015); Rosado v. City of Harriman, No. 3:08-
`
`cv-353, 2012 U.S. Dist. LEXIS 138968, at *29 (E.D. Tenn. Sept. 27, 2012).
`
`Also, the mere fact that the page presents the name and photograph of an
`
`individual does not permit a reasonable conclusion that the page was created by that
`
`same individual named on the page or on his/hers behalf. See Vayner, 769 F.3d at
`
`132.
`
`In addition, Ex. 2049 is also inadmissible because it is unauthenticated.
`
`Nissan offers no supplemental evidence regarding who actually authored the profiles
`
`did not exist prior to that time. See Nissan Chemical Industries, Ltd.’s Preliminary
`
`Response (Paper 7) at 1, 5.
`
`7
`
`
`
`compiled in Ex. 2049, or any evidence regarding the source of their content. See
`
`Linscheid, 2015 U.S. Dist. LEXIS 40255 at *14-15 (holding LinkedIn profile
`
`inadmissible because it was not properly authenticated); see also St. Clair v.
`
`Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 775 (S.D. Tex. 1999) (“Anyone
`
`can put anything on the Internet. No web-site is monitored for accuracy and nothing
`
`contained therein is under oath or even subject to independent verification absent
`
`underlying documentation.”).
`
`Exhibit 2052, Mamula, K., “Question for FTC: Is Mylan based at
`Southpointe or in the Netherlands?,” Pittsburgh Business Times,
`June 22, 2015
`
`Exhibit 2052 purports to be an Internet article by Kris B. Mamula. Nissan
`
`offers the content of this article for the truth of the matter asserted therein, namely
`
`that MNV asserted that it should be afforded protection of U.S. laws. Reply at 4.
`
`To this end, Nissan relies on a quote allegedly attributed to an MNV corporate
`
`officer.
`
`Id. As explained in regards to Ex. 2040, above, the content of Internet
`
`newspaper articles constitute inadmissible hearsay, and therefore Ex. 2052 should
`
`be excluded for the same reasons as Ex. 2040.
`
`Also, as explained in regards to Ex. 2040, above, Ex. 2052 is likewise
`
`inadmissible because it too is an unauthenticated printout from an Internet website
`
`for the same reasons as Ex. 2040.
`
`8
`
`
`
`Mr. Jenkins’s Deposition Testimony Cited by Nissan
`
`Nissan’s references to certain portions of Mr. Jenkins’s deposition testimony,
`
`listed below, should be excluded from its Reply because it presents a prejudicial and
`
`misleading impression and would cause confusion under FRE 403. See Murray v.
`
`Motorola, Inc., 2014 D.C. Super. LEXIS 16, 59-60 (D.C. Super. Ct. Aug. 8, 2014).
`
`Testimony Cited By Nissan
`
`“Jenkins could not explain how he
`came to know that MNV was a ‘non-
`operational holding company’” (Decl.
`Para. 3)[.]” Reply at 1.
`“The circumstances suggest that he
`copied the term from the Par opinion,
`and he does not even know what it
`means. Tr. 56:14-17…39:19-40:9;
`40:24-41:1.” Reply at 1.
`“[Mr. Jenkins] claimed that MNV
`lacked the authority to act on IPRs, but
`could not say why, relying only on
`what he had been told …. Tr. 118:16-
`120:3.” Reply at 1-2.
`“Not only was Jenkins’ knowledge
`limited, it appears that he kept
`deliberately uninformed….” Reply at
`2.
`
`Testimony Showing That Nissan’s
`Citations Are Prejudicial,
`Misleading, and Confusing
`40:10-23; 43:10-44:4; 55:2-56:11;
`121:23-122-18; 128:19-130:9
`
`40:10-23; 43:10-44:4; 55:2-56:11;
`121:23-122-18; 128:19-130:9
`
`38:22-39:15; 56:20-24; 60:23-61:18;
`117:7-118:15; 127:19-128:12
`
`43:5-44:9; 109:21-110:1; 110:23-
`111:19.
`
`IV. Conclusion
`For the foregoing reasons, Petitioner respectfully requests that the Board
`
`exclude Exhibit Nos. 2035-36, 2038-41, 2046, 2049, 2052, and Nissan’s references
`
`to certain portions of Mr. Jenkins’s deposition testimony in the Reply.
`
`9
`
`
`
`Date: October 9, 2015
`
`Respectfully submitted,
`
`/Thomas Parker
`Thomas Parker
`Reg. No. 42062
`Counsel for Petitioner
`Alston & Bird LLP
`90 Park Avenue, 12th Floor
`New York, New York 10016
`Telephone: 212-210-9529
`Fax: 212-922-3975
`thomas.parker@alston.com
`
`Jitendra Malik
`Reg. No. 55823
`Counsel for Petitioner
`4721 Emperor Blvd., Suite 400 Durham,
`North Carolina 27703
`Telephone: 919-862-2200
`Fax: 919-862-2260
`Jitty.Malik@alston.com
`
`Deanne M. Mazzochi
`Reg. No. 50158
`Counsel for Petitioner
`Rakoczy Molino Mazzochi Siwik LLP
`6 West Hubbard St., Suite 500 Chicago,
`Illinois 60654
`Telephone: 312-222-6305
`Fax: 312-222-6325
`dmazzochi@rmmslegal.com
`
`10
`
`
`
`CERTIFICATION OF SERVICE ON PATENT OWNER
`
`the foregoing document entitled
`The undersigned hereby certifies that
`PETITIONER’S MOTION TO EXCLUDE NISSAN’S EXHIBITS UNDER 37
`C.F.R. § 42.64(c) was served electronically via e-mail on October 9, 2015 to Patent
`Owner’s counsel of record upon the following:
`
`David G. Conlin Reg. No. 27,026 Lead
`Counsel for Patent Owner Mintz Levin
`Cohn Ferris Glovsky and Popeo, P.C.
`One Financial Center
`Boston, Massachusetts 02111 Tel.:
`617-348-1856 Fax: 617-542-2241
`DGConlin@mintz.com
`
`Kathleen B. Carr
`Reg. No. 41,658
`Back-up Counsel for Patent Owner
`Mintz Levin Cohn Ferris Glovsky and
`Popeo, P.C.
`One Financial Center
`Boston, Massachusetts 02111
`Tel.: 617-348-1857
`Fax: 617-542-2241
`KBCarr@mintz.com
`
`Respectfully submitted,
`ALSTON & BIRD LLP
`
`By: /Jitendra Malik/
`Jitendra Malik
`Reg. No. 55823
`Lead Counsel for Petitioner
`4721 Emperor Blvd.,
`Suite 400
`Durham, North Carolina 27703
`Telephone: 919-862-2200
`Fax:919-862-2260
`Jitty.Malik@alston.com
`
`11
`
`
`
`Appendix A
`Petitioner's Evidentiary Objections Pursuant to 37
`C.F.R. § 42.64
`
`
`
`IPR2015-01069
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
`
`Mylan Pharmaceuticals Inc., Petitioner
`
`v.
`
`Nissan Chemical Industries Ltd.
`Patent Owner
`_____________________
`
`
`
`
`
`
`
`
`
`Inter Partes Review No.: IPR2015-01069
`
`
`
`PETITIONER’S EVIDENTIARY OBJECTIONS
`
`PURSUANT TO 37 C.F.R. § 42.64
`
`
`
`
`
`
`
`
`
`
`
`Pursuant to 37 C.F.R. § 42.64, Petitioner, Mylan Pharmaceuticals Inc., asserts
`
`and attaches hereto its evidentiary objections to the exhibits accompanying Patent
`
`Owner’s paper entitled Nissan’s Reply Regarding Petitioner’s Failure to Name a
`
`Real Party-In-Interest (“the Reply”).
`
`Date: September 21, 2015
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`/Jitendra Malik/
`
`Jitendra Malik
`Reg. No. 55823
`Counsel for Petitioner
`4721 Emperor Blvd., Suite 400 Durham,
`North Carolina 27703
`Telephone: 919-862-2200
`Fax: 919-862-2260 Jitty.Malik@alston.com
`
`Thomas Parker
`Reg. No. 42062
`Counsel for Petitioner
`Alston & Bird LLP
`90 Park Avenue, 12th Floor
`New York, New York 10016
`Telephone: 212-210-9529
`Fax: 212-922-3975
`thomas.parker@alston.com
`
`Deanne M. Mazzochi
`Reg. No. 50158
`Counsel for Petitioner
` Rakoczy Molino Mazzochi Siwik LLP
`6 West Hubbard St., Suite 500 Chicago,
`Illinois 60654
`Telephone: 312-222-6305
`Fax: 312-222-6325
`dmazzochi@rmmslegal.com
`
`
`LEGAL02/35454033v1
`
`
`
`
`
`KEY
`
`Basis
`
`Exhibit is objected to in its entirety, and with respect
`to the specific portions on which Patent Owner relies,
`pursuant to Fed. R. Evid. 401 and/or 402 as irrelevant.
`Exhibit is objected to in its entirety, and with respect
`to the specific portions on which Patent Owner relies,
`pursuant to Fed. R. Evid. 802 as hearsay, and the
`exhibit does not satisfy any exception to the rule
`against hearsay.
`
`
`
`Exhibit is objected to in its entirety, and with respect
`to the specific portions on which Patent Owner relies,
`pursuant to Fed. R. Evid. 805 as hearsay within
`hearsay.
`
`
`
`IPR2015-01069
`
`Objection
`
`Relevance
`
`Hearsay
`
`
`
`Double Hearsay
`
`
`
`Authentication/Foundation Exhibit is objected to pursuant to Fed. R. Evid. 901 for
`lack of foundation and/or authenticity, including, but
`not limited to Patent Owner’s failure to establish the
`document(s)’ identity or otherwise produced sufficient
`evidence to support a finding that the item is what the
`Patent Owner claims it is, nor has the Patent Owner
`produced
`sufficient evidence
`to
`indicate
`the
`document(s)’ creator, source or custodian.
`
`
`
`
`
`2
`
`
`
`IPR2015-01069
`
`
`
`Objections
`
`Ex.
`No.
`2034 Authentication/Foundation
`
`Hearsay
`
`Double Hearsay with respect to any statements allegedly attributable to any
`particular individual.
`2035 Authentication/Foundation
`
`Hearsay
`
`Relevance: This is a legal document prepared under Dutch law. See
`Sections 1.02, 1.03, 4.01, and 12.01. The relevancy of this document, or
`lack thereof, therefore requires a legal opinion and/or expert testimony
`regarding the meaning of this document under Dutch law relative to the
`legal and factual issues at hand. See Fed. R. Evid. 701 and 702.
`2036 Authentication/Foundation
`
`Relevance
`
`Hearsay
`
`Double Hearsay with respect to any statements allegedly attributable to any
`particular individual.
`2038 Authentication/Foundation
`
`Relevance
`
`Hearsay
`
`Double Hearsay with respect to any statements allegedly attributable to any
`particular individual
`2039 Authentication/Foundation
`
`Relevance: this exhibit is not cited in the Reply and therefore must be
`withdrawn.
`
`Hearsay
`
`3
`
`
`
`IPR2015-01069
`
`Objections
`
`Ex.
`No.
`2040 Authentication/Foundation
`
`Hearsay
`
`Double Hearsay with respect to any statements allegedly attributable to any
`particular individual.
`
`Also, Patent Owner’s characterization of this documents is misleading. See
`Reply at 4, 5. Therefore, pursuant to Fed. R. Evid. 106, Petitioner requests
`that the Board consider the following portions of Thomas Jenkins’
`deposition transcript at the same time it considers Ex. 2040: Jenkins’ Tr.
`38:22-39:15; 56:20-24; 60:23-61:18; 89:19-90:24; 117:7-118:15; 127:19-
`128:12.
`2041 Authentication/Foundation
`
`Relevance: this exhibit is not cited in the Reply and therefore must be
`withdrawn.
`
`Hearsay
`Authentication/Foundation
`
`Hearsay
`
`Also, Patent Owner’s characterization of these documents is misleading.
`See Reply at 4, 5. Therefore, pursuant to Fed. R. Evid. 106, Petitioner
`requests that the Board consider the following portions of Thomas Jenkins’
`deposition transcript at the same time it considers Exs. 2042 and 2043:
`Jenkins’ Tr. 54:5-55:1; 21:10-16; 103:5-104:5; 99:10-100:9; 102:4-106:7.
`2044 Authentication/Foundation
`
`Relevance: this exhibit is not cited in the Reply and therefore must be
`withdrawn.
`
`Hearsay
`2045 Authentication/Foundation
`
`Hearsay
`
`2042
`and
`2043
`
`4
`
`
`
`IPR2015-01069
`
`Objections
`
`Ex.
`No.
`2046 Authentication/Foundation
`
`Relevance: this exhibit is not cited in the Reply and therefore must be
`withdrawn.
`
`Hearsay
`
`Double Hearsay with respect to any statements allegedly attributable to any
`particular individual.
`2047 Authentication/Foundation
`
`Hearsay
`2049 Authentication/Foundation
`
`Hearsay
`
`Double Hearsay
`
`Relevance/Unreliable: Mylan N.V. did not exist prior to February 2008 or
`May 2010. See Patent Owner’s Preliminary Response at 5-6; See also NCI
`Ex. 2007 at 4.
` 2050 Authentication/Foundation
`
`Relevance
`
`Hearsay
`2051 Authentication/Foundation
`
`Hearsay
`
`New evidence outside the scope of Petitioner’s Response. See 37 CFR
`42.23 and 77 Fed. Reg. 48767.
`
`5
`
`
`
`IPR2015-01069
`
`Objections
`
`Ex.
`No.
`2052 Authentication/Foundation
`
`Relevance
`
`Hearsay
`
`Double Hearsay with respect to any statements allegedly attributable to any
`particular individual.
`
`
`
`
`6
`
`
`
`IPR2015-01069
`
`Petitioner also objects to Patent Owner’s citation to certain portions from the
`
`deposition transcript of Thomas Jenkins on the grounds that the excerpts and/or
`
`characterizations of Mr. Jenkin’s testimony present a prejudicial and misleading
`
`impression created by presenting his testimony out of context. See Fed. R. Evid.
`
`106; Fed. R. Civ. P. 32(a) (6); see also Beech Aircraft Corp. v. Rainey, 488 U.S. 153
`
`at 171 (1988). Therefore, Petitioner requests that the following portions of Mr.
`
`Jenkins’ testimony be considered concurrently with Patent Owner’s citations
`
`thereof:
`
`Testimony Cited By Patent Owner
`
`“Jenkins could not explain how he
`came to know that MNV was a ‘non-
`operational holding company’ (Decl.
`Para. 3)” Reply at 1.
`“The circumstances suggest that he
`copied the term from the Par opinion,
`and he does not even know what it
`means. Tr. 56:14-17… 39:19-40:9;
`40:24-41:1.” Reply at 1.
`“[Mr. Jenkins] claimed that MNV
`lacked the authority to act on IPRs, but
`could not say why, relying only on
`what he had been told …. Tr. 118:16-
`120:3.” Reply at 1-2.
`“Not only was Jenkins’ knowledge
`limited, it appears that he kept
`deliberately uninformed….”
`
`Testimony To Be Considered Under
`Fed. R. Evid. 106
`40:10-23; 43:10-44:4; 55:2-56:11;
`121:23-122-18; 128:19-130:9.
`
`40:10-23; 43:10-44:4; 55:2-56:11;
`121:23-122-18; 128:19-130:9.
`
`38:22-39:15; 56:20-24; 60:23-61:18;
`117:7-118:15; 127:19-128:12.
`
`43:5-44:9; 109:21-110:1; 110:23-
`111:19.
`
`
`
`
`
`7
`
`
`
`
`
`CERTIFICATION OF SERVICE ON PATENT OWNER
`
`The undersigned hereby certifies that the foregoing document entitled
`
`PETITIONER’S EVIDENTIARY OBJECTIONS PURSUANT TO 37 C.F.R. §
`
`42.64 was served electronically via e-mail on September 21, 2015 to Patent Owner’s
`
`counsel of record upon the following:
`
`David G. Conlin
`Reg. No. 27,026
`Lead Counsel for Patent Owner
`Mintz Levin Cohn Ferris Glovsky
`and Popeo, P.C.
`One Financial Center,
`Boston, Massachusetts 02111
`Tel.: 617-348-1856
`Fax: 617-542-2241
`DGConlin@mintz.com
`
`
`Kathleen B. Carr
`Reg. No. 41,658
`Back-up Counsel for Patent Owner
`Mintz Levin Cohn Ferris Glovsky and
`Popeo, P.C.
`One Financial Center,
`Boston, Massachusetts 02111
`Tel.: 617-348-1857
`Fax: 617-542-2241
`KBCarr@mintz.com
`
`
`
`
`
`
`
`Date: September 21, 2015
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`
`
`/Jitendra Malik/
`
`Jitendra Malik
`Reg. No. 55823
`Counsel for Petitioner
`4721 Emperor Blvd., Suite 400 Durham,
`North Carolina 27703
`Telephone: 919-862-2200
`Fax: 919-862-2260 Jitty.Malik@alston.com
`
`
`
`Appendix B
`Patent Owner's Submission of Supplemental
`Evidence: Declaration of Kathleen B. Carr
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`MYLAN PHARMACEUTICALS INC.,
`Petitioner,
`
`v.
`
`NISSAN CHEMICAL INDUSTRIES, LTD.,
`PATENT OWNER
`
`U.S. Patent No. 5,856,336
`
`Issue Date: January 5, 1999
`
`Title: Quinoline Type Mevalonolactones
`
`Inter Partes Review No. IPR2015-01069
`
`PATENT OWNER'S SUBMISSION OF
`SUPPLEMENTAL EVIDENCE:
`
`DECLARATION OF KATHLEEN B. CARR
`
`
`
`I, Kathleen B. Carr, declare as follows:
`
`1.
`
`I am a member of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
`
`P.C. ("Mintz Levin"), and work out of Mintz Levin's Boston offices, located at
`
`One Financial Center, Boston, MA, 02111. I make this declaration based on my
`
`personal knowledge, except as to any matters stated on information and belief, and
`
`as to those matters, I am informed and believe them to be true.
`
`2.
`
`All the exhibits described herein were filed in this proceeding by
`
`Patent Owner Nissan Chemical Industries, Ltd. ("Patent Owner") on September 17,
`
`2015 ("PO Exhibits").
`
`3.
`
`Exhibit 2034 is a copy of a printable version of a webpage entitled
`
`"Leadership" available on the Mylan corporate website at
`
`http://www.mylan.com/en/company/leadership. A side-by-side comparison of the
`
`webpage accessed at that address on October 5, 2015 shows it to be substantively
`
`identical to Exhibit 2034. 1
`
`1 The PO Exhibits differ from the documents publicly available on the intemet at
`
`the addresses indicated herein insofar as the PO Exhibits have exhibit numbers
`
`and, in some cases, also show deposition exhibit stickers, and may have other non-
`
`substantive differences, such as marks showing that the hard copies from which the
`
`PO Exhibits were generated were printed on a certain date or were three-hole
`
`punched. The PO Exhibits are otherwise substantively identical to the documents
`
`2
`
`
`
`4.
`
`Exhibit 2035 is a copy of a document entitled "Articles of Association
`
`of Mylan N.V." available on the Mylan corporate website at
`
`http://www.mylan.com/-
`
`/media/mylancom/files/company/corporate%20governance/articles%20of%20asso
`
`ciation.pdf. A side-by-side comparison of the webpage accessed at that address
`
`on October 5, 2015 shows it to be substantively identical to Exhibit 2035.
`
`5.
`
`Exhibit 2036 is a copy of a printable version of a document entitled
`
`"Mylan N.V. — Other" available on Mylan's corporate website at
`
`http://apps.shareholder.com/sec/viewerContentaspx?companyid=ABEA-
`
`2LQZGT&docid=1 0854176, or by going to
`
`http://www.mylan.com/en/investors/public-filings, scrolling to the bottom of that
`
`page, clicking on the right-sided blue arrow until the date "August 10, 2015"
`
`becomes visible, and clicking on the first of the two linked documents entitled
`
`"Other" that appear next to that date. A side-by-side comparison of the webpage
`
`accessed at that address on October 5, 2015 shows it to be substantively identical
`
`to Exhibit 2036. The very same Mylan document was filed with the United States
`
`Securities and Exchange ("SEC"), and is publicly available from the SEC's
`
`publicly available at the internet addresses provided herein. The hyperlinks
`
`contained in this declaration are live and accurate as of October 5, 2015 at 7:00 pm
`
`eastern.
`
`3
`
`
`
`EDGAR website at
`
`https ://www. sec. gov/Archives/edgar/data/1585364/000095015715000898/form425
`
`.htm.
`
`6.
`
`Exhibit 2038 is a copy of the Linkedln profile page of Steven Flynn,
`
`identified as the Vice President and Associate General Counsel at Mylan Inc.,
`
`available on the internet at https://www.linkedin.com/pub/steven-flynn/70/861/2ab.
`
`A side-by-side comparison of the webpage accessed at that address on October 5,
`
`2015 shows it to be substantively identical to Exhibit 2038.
`
`7.
`
`Exhibit 2039 is a copy of a United States Federal Election
`
`Commission form entitled "Form 3X, Report of Receipts and Disbursements,"
`
`submitted by the "Mylan Inc. Political Action Committee (MYPAC)," and is
`
`available on the Federal Election Commission website at
`
`http://docqueryfec.gov/pdf/120/201507209000280120/201507209000280120.pdf.
`
`A side-by-side comparison of the webpage accessed at that address on October 5,
`
`2015 shows it to be substantively identical to Exhibit 2039.
`
`8.
`
`Exhibit 2040is a copy of a Wall Street Journal article published on
`
`August 31, 2015, entitled "Drug-Industry Rule Would Raise Medicare Costs,"
`
`available at http://vvvvw.wsj.com/articles/drug-industry-bill-would-raise-medicare-
`
`costs-1441063248. A side-by-side comparison of the webpage accessed at that
`
`address on October 5, 2015 shows it to be substantively identical to Exhibit 2040.
`
`4
`
`
`
`9.
`
`Exhibit 2041 is a copy of a printable version of the Wall Street
`
`Journal's "Mylan N.V." company profile webpage, available at
`
`http://quotes.wsj.com/MYL/company-people, as it existed on September 4, 2015 at
`
`12:39 pm eastern. A side-by-side comparison of the webpage accessed at that
`
`address on October 5, 2015 shows that the company description and the list of "key
`
`people," among other portions of the webpage, are substantively identical to those
`
`portions of Exhibit 2041.
`
`10. Exhibit 2042 is a copy of a press release issued by Mylan N.V. on
`
`August 25, 2015, and titled "Mylan Launches Generic Zosyn® Injection" and
`
`available on the Mylan corporate website at http://newsroom.mylan.com/2015-08-
`
`25-Mylan-Launches-Generic-Zosyn-Injection. A side-by-side comparison of the
`
`webpage accessed at that address on October 5, 2015 shows it to be substantively
`
`identical to Exhibit 2042.
`
`11. Exhibit 2043 is a compilation of three press releases issued by Mylan
`
`N.V. and Mylan Inc. on March 11, 2015 titled "Mylan Launches Generic
`
`Subutex® Sublingual Tablets," "Mylan Launches Generic Antabuse® Tablets,"
`
`and "Mylan Launches First and Only Available Intermediate Dosage Strengths of
`
`Fentanyl Transdermal System 37.5, 62.5 and 87.5 mcg/hr," respectively. The three
`
`press releases are available on the Mylan corporate website at
`
`http://newsroom.mylan.com/index.php?s=2429&item=123289,
`
`5
`
`
`
`http://newsroom.mylan.com/index.php?s=2429&item=123288, and
`
`http://newsroom.mylan.com/index.php?s=2429&item=123287, respectively. A
`
`side-by-side comparison of the webpages accessed at their respective addresses on
`
`October 5, 2015 shows them to be substantively identical to the press releases
`
`compiled together into Exhibit 2039.
`
`12. Exhibit 2044 is a copy of a news release issued by Mylan N.V.
`
`entitled "Mylan to Present at Goldman Sachs 36th Annual Global Healthcare
`
`Conference" available at http://newsroom.mylan.com/2015-06-03-Mylan-to-
`
`Present-at-Goldman-Sachs-36th-Annual-Global-Healthcare-Conference. A side-
`
`by-side comparison of the webpage accessed at that address on October 5, 2015
`
`shows it to be substantively identical to Exhibit 2044.
`
`13. Exhibit 2045 is a copy of a webpage entitled "Corporate Governance"
`
`available on the Mylan corporate website at
`
`http://www.mylan.com/en/company/corporate-governance. A side-by-side
`
`comparison of the webpage accessed at that address on October 5, 2015 shows it to
`
`be substantively identical to Exhibit 2045.
`
`14. Exhibit 2046 is a copy of a transcript of the "Mylan N.V. Q2 2015
`
`Earnings Call" held on August 6, 2015, provided by Bloomberg L.P. through a
`
`subscription service. A copy of the audio recording of the August 6, 2015 Mylan
`
`N.V. Q2 2015 Earnings Call is available on the internet at
`
`6
`
`
`
`http://seekingalpha.com/article/3406976-mylan-myl-q2-2015-results-earnings-call-
`
`webcast. A copy of the transcript of the August 6, 2015 Mylan N.V. Q2 2015
`
`Earnings Call itself is also available on Mylan's corporate website at
`
`http://apps.shareholder.com/seciviewerContent.aspx?companyid=ABEA-
`
`2LQZGT&docid=10854176, beginning after the section entitled "No Profit
`
`Forecast / Asset Valuations." A side-by-side comparison of the transcript portion
`
`of the webpage accessed at this last address on October 5, 2015 shows it to be
`
`substantively identical to Exhibit 2046.
`
`15. Exhibit 2047 is a copy of document previously filed by Patent Owner
`
`on July 28, 2015 as Exhibit 2007, which in turn is a copy of a letter submitted to
`
`the Office of Chief Counsel of the Division of Corporation Finance of the SEC by
`
`Bradley L. Wideman, Vice President, Associate General Counsel, Securities and
`
`Assistant Secretary, Mylan Inc., on behalf of Mylan Inc. and "New Moon B.V.,"
`
`dated February 12, 2015, and available at http://www.sec.gov/divisions/corpfin/cf-
`
`noaction/2015/mylan-021815-12g3-incoming.pdf. A side-by-side comparison of
`
`the webpage accessed at that address on October 5, 2015 shows it to be
`
`substantively identical to Exhibit 2047.
`
`16. Exhibit 2049 is a compilation of the Linkedln profile webpages of
`
`three individuals who identify their current employer as Mylan N.V., including
`
`Ms. Kris Harman King, who is the Vice President, Global I
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