UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
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`COALITION FOR AFFORDABLE DRUGS II LLC
`Petitioner
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`v.
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`NPS PHARMACEUTICALS, INC.
`Patent Owner
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`_____________________
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`Case Nos. IPR2015-00990 and IPR2015-01093
`Patent No. 7,056,886
`_____________________
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`DECLARATION OF CHRISTOPHER E. KIRKPATRICK
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`Page 1
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`NPS EX. 2033
`CFAD v. NPS
`IPR2015-01093
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`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
`
`
`
`COALITION FOR AFFORDABLE DRUGS II LLC
`Petitioner
`
`v.
`
`
`
`NPS PHARMACEUTICALS, INC.
`Patent Owner
`
`_____________________
`
`Case Nos. IPR2015-00990 and IPR2015-01093
`Patent No. 7,056,886
`_____________________
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`DECLARATION OF CHRISTOPHER E. KIRKPATRICK
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`Page 1
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`NPS EX. 2033
`CFAD v. NPS
`IPR2015-01093
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`I, Christopher E. Kirkpatrick, hereby declare the following:
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`1.
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`I am the custodian of documents for the Coalition for Affordable
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`Drugs II LLC (CFAD), which is the Petitioner in Case Nos. IPR2015-00990 and
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`IPR2015-01093. I am also the General Counsel of Hayman Capital Management,
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`L.P., which is identified as a real party-in-interest in the same proceedings. As part
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`of my responsibilities in these positions, I am aware of the persons or entities that
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`have the ability to control the business actions of CFAD.
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`2.
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`I am authorized to provide this declaration as a representative of
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`CFAD, J Kyle Bass and the “Hayman RPI,” which consist of Hayman Credes
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`Master Fund, L.P., Hayman Orange Fund SPC – Portfolio A, Hayman Capital
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`Master Fund, L.P., Hayman Capital Management, L.P., Hayman Offshore
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`Management, Inc. and Hayman Investments, L.L.C., collectively.
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`3.
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`I understand that Petitioner made the following statement with respect
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`to real parties-in-interest in these proceedings:
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`Pursuant to 37 C.F.R. § 42.8(b)(1), Petitioner certifies that
`Coalition For Affordable Drugs II LLC (“CFAD”), Hayman
`Credes Master Fund, L.P. (“Credes”), Hayman Orange Fund
`SPC – Portfolio A (“HOF”), Hayman Capital Master Fund, L.P.
`(“HCMF”), Hayman Capital Management, L.P. (“HCM”),
`Hayman Offshore Management, Inc. (“HOM”), Hayman
`Investments, L.L.C. (“HI”), nXn Partners, LLC (“nXnP”), IP
`Navigation Group, LLC (“IPNav”), J Kyle Bass, and Erich
`Spangenberg are the real parties in interest (collectively,
`“RPI”). The RPI hereby certify the following information:
`CFAD is a wholly owned subsidiary of Credes. Credes is a
`limited partnership. HOF is a segregated portfolio company.
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`1
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`Page 2
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`HCMF is a limited partnership. HCM is the general partner and
`investment manager of Credes and HCMF. HCM is the
`investment manager of HOF. HOM is the administrative
`general partner of Credes and HCMF. HI is the general partner
`of HCM. J Kyle Bass is the sole member of HI and sole
`shareholder of HOM. CFAD, Credes, HOF and HCMF act,
`directly or indirectly, through HCM as the general partner
`and/or investment manager of Credes, HOF and HCMF. nXnP
`is a paid consultant to HCM. Erich Spangenberg is 98.5%
`member of nXnP. IPNav is a paid consultant to nXnP. Erich
`Spangenberg is the 98.5% member of IPNav. Other than HCM
`and J Kyle Bass in his capacity as the Chief Investment Officer
`of HCM and nXnP and Erich Spangenberg in his capacity as
`the Manager/CEO of nXnP, no other person (including any
`investor, limited partner, or member or any other person in any
`of CFAD, Credes, HOF, HCMF, HCM, HOM, HI, nXnP or
`IPNav) has authority to direct or control (i) the timing of, filing
`of, content of, or any decisions or other activities relating to this
`Petition or (ii) any timing, future filings, content of, or any
`decisions or other activities relating to the future proceedings
`related to this Petition. All of the costs associated with this
`Petition will be borne by HCM, CFAD, Credes, HOF and/or
`HCMF.
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`IPR2015-00990, Paper 1 at pp. 3-5; IPR2015-01093, Paper 1 at pp. 3-4.
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`4.
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`I further understand that, in response to a motion for Additional
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`Discovery from the Patent Owner NPS Pharmaceuticals, Inc., the Board ordered as
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`follows:
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`In particular, as to Request for Production No. 6, we
`authorize additional discovery only as to any agreements,
`in the possession of Petitioner, relating to the control or
`ability to control any aspect of the current proceeding by
`a party not designated as Petitioner or a real party-in-
`interest in the Petition. Such agreements include those
`indicating that any person or party (other than Petitioner
`or designated real parties-in-interest) provided direction
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`2
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`Page 3
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`to, or had the authority to provide direction to, Petitioner
`or its counsel in relation to this proceeding, including
`persons or parties who reviewed, or were given the
`opportunity to review, papers filed in this proceeding.
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`IPR2015-00990, Paper 14 at p. 7; IPR2015-01093, Paper 14 at p. 7.
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`5.
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`In response to this Order and at the request of Petitioner, I conducted a
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`diligent search for any agreements in the possession of CFAD, the Hayman RPI or
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`J Kyle Bass “relating to the control or ability to control any aspect of the current
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`proceeding[s] by a party not designated as Petitioner or a real party-in-interest in
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`the Petition[s].” I located no agreements in the possession of CFAD, the Hayman
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`RPI or J Kyle Bass that meet this definition.
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`6.
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`Further, my search located no agreements in the possession of CFAD,
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`the Hayman RPI or J Kyle Bass “indicating that any person or party (other than
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`Petitioner or designated real parties-in-interest) provided direction to, or had the
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`authority to provide direction to, Petitioner or its counsel in relation to th[ese]
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`proceeding[s].”
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`7.
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`The fact that my search did not locate documents responsive to the
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`Board’s Order comports with CFAD’s identification of the real parties-in-interest
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`in its Petitions. As stated in the Petitions, only CFAD, Hayman Capital
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`Management, L.P., J Kyle Bass, nXn Partners, LLC and Erich Spangenberg have
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`“authority to direct or control (i) the timing of, filing of, content of, or any
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`decisions or other activities relating to this Petition or (ii) any timing, future filings,
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`3
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`Page 4
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`content of, or any decisions or other activities relating to the future proceedings
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`related to th[ese] Petition[s].” IPR2015-00990, Paper 1 at pp. 4-5; IPR2015-
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`01093, Paper 1 at p. 4. There is no person or party who reviewed, or was given the
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`opportunity to review, papers filed in these proceedings, who provided direction to,
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`or had the authority to provide direction to, Petitioner or its counsel (other than the
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`Petitioner or designated real parties-in-interest, or their employees and counsel).
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`8.
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`In addition, only certain of the designated real parties-in-interest
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`(CFAD, Hayman Capital Management, L.P., Hayman Credes Master Fund, L.P.,
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`Hayman Orange Fund SPC – Portfolio A and Hayman Capital Master Fund, L.P.)
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`are funding the costs for these proceedings. No one other than these designated
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`real parties-in-interest is funding the costs for these proceedings.
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`9. Moreover, the counsel who file the papers in these proceedings on
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`behalf of CFAD are given instructions only by CFAD, Hayman Capital
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`Management, L.P. (or its employees), J Kyle Bass, nXn Partners, LLC (or its
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`employees) or Erich Spangenberg.
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`Date: July 16, 2015
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`____________________________________
`Christopher E. Kirkpatrick
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`4
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`Page 5
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