UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`__________
`
`
`
`PAR PHARMACEUTICAL, INC.,
`
`and
`
`LUPIN LTD. and LUPIN PHARMACEUTICALS, INC.,
`
`Petitioners
`
`v.
`
`HORIZON THERAPEUTICS, INC.,
`
`Patent Owner
`
`__________
`
`
`
`Case IPR2015-01117*
`Patent 8,642,012
`
`__________
`
`
`
`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
`
`
`* Case IPR2015-00283, instituted on a petition filed by Lupin Ltd. and Lupin
`Pharmaceuticals, Inc., has been joined with this proceeding.
`
`
`
`
`
`
`
`__________
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`__________
`
`
`
`PAR PHARMACEUTICAL, INC.,
`
`and
`
`LUPIN LTD. and LUPIN PHARMACEUTICALS, INC.,
`
`Petitioners
`
`v.
`
`HORIZON THERAPEUTICS, INC.,
`
`Patent Owner
`
`__________
`
`
`
`Case IPR2015-01117*
`Patent 8,642,012
`
`__________
`
`
`
`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
`
`
`* Case IPR2015-00283, instituted on a petition filed by Lupin Ltd. and Lupin
`Pharmaceuticals, Inc., has been joined with this proceeding.
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`I.
`
`II.
`
`INTRODUCTION AND RELIEF REQUESTED .......................................... 1
`
`PROCEDURAL POSTURE AND BACKGROUND ..................................... 2
`
`IV. RE-EXAMINATION TESTIMONY OUTSIDE THE SCOPE OF DR.
`SONDHEIMER’S CROSS-EXAMINATION TESTIMONY
`SHOULD BE EXCLUDED ............................................................................ 4
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`Re-Examination Testimony Concerning Dr. Sondheimer’s
`Background and Experience Treating UCD Patients Should Be
`Excluded ................................................................................................ 4
`
`Re-Examination Testimony Concerning Dr. Sondheimer’s
`Definition of a Person of Ordinary Skill Should Be Excluded ............. 6
`
`Re-Examination Testimony Concerning Fernandes is Outside
`the Scope of Dr. Sondheimer’s Cross-Examination Testimony
`and Should Be Excluded ....................................................................... 7
`
`Re-Examination Testimony Concerning Typical Gelatin
`Capsule Volume, the Density of Sodium Phenylbutyrate, and
`Calculation of the Amount of Sodium Phenylbutyrate Dosed in
`Brusilow ’91 Should Be Excluded ........................................................ 9
`
`Re-Examination Testimony Directed to the Relevant Time
`Period for a POSA’s Evaluation of Alleged Prior Art Regarding
`the Rate of Conversion of PAA to PAGN Should Be Excluded ........ 10
`
`Re-Examination Testimony Concerning Table 11.9 of Blau
`Should Be Excluded ............................................................................ 11
`
`G.
`
`Exhibits 1031-1033 Should be Excluded ............................................ 12
`
`CONCLUSION .............................................................................................. 15
`
`
`
`V.
`
`
`
`IPR2015-01117
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`Page i
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`
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`TABLE OF AUTHORITIES
`
`Cases
`Corning Gilbert Inc. v. PPC Broadband, Inc.,
`IPR2013-00346, Paper 48 (PTAB June 23, 2014) ................................................. 4
`
`Rules
`
`Federal Rule of Evidence 403 ..................................................................................14
`
`Federal Rule of Evidence 901 ..................................................................................14
`
`Regulations
`
`37 C.F.R. § 42.53(d)(5)(ii) ...................................................................................4, 14
`
`37 C.F.R. § 42.64 ....................................................................................................... 1
`
`37 C.F.R. § 42.64(a) ................................................................................................... 2
`
`37 C.F.R. § 42.64(c) ...............................................................................................2, 3
`
`
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`IPR2015-01117
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`Page ii
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`I.
`
`INTRODUCTION AND RELIEF REQUESTED
`
`Pursuant to 37 C.F.R. § 42.64 and the Board’s Scheduling Order, Patent
`
`Owner moves to exclude portions of the re-examination testimony of Dr. Neal
`
`Sondheimer elicited at his March 10-11, 2016 deposition (“the Sondheimer
`
`Deposition,” Ex. 2012), because such testimony is outside the scope of Dr.
`
`Sondheimer’s cross-examination testimony and/or Dr. Sondheimer’s direct
`
`testimony. Patent Owner also moves to exclude documents offered by Petitioner
`
`during re-examination of Dr. Sondheimer as outside the scope of his cross-
`
`examination testimony, untimely, irrelevant, and/or lacking foundation and/or
`
`authenticity. Petitioner should be precluded from using such documents and the
`
`portions of Dr. Sondheimer’s testimony identified below at any hearing or in any
`
`paper such as, without limitation, a brief, motion, or observation on cross-
`
`examination.
`
`Specifically, Patent Owner moves to exclude the following portions of Dr.
`
`Sondheimer’s re-examination testimony in Exhibit 2012 as well as the documents
`
`not previously of record but offered by Petitioner as Exhibits 1031-1033:
`
`• 218:17-224:19;
`
`• 269:15-283:14;
`
`• 225:1-231:1;
`
`• 242:2-242:16;
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`IPR2015-01117
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`Page 1
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`
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`• 243:15-244:19;
`
`• 249:22-251:6;
`
`• 252:10-254:14;
`
`• 259:5-260:9;
`
`• 261:7-265:2;
`
`• 266:14-267:6; and
`
`• 289:9-21.
`
`Patent Owner’s objections to the testimony that is the subject of this Motion
`
`are included in the citations referenced above.
`
`II.
`
`PROCEDURAL POSTURE AND BACKGROUND
`
`
`
`To preserve its right to exclude evidence based on objections timely made as
`
`required by 37 C.F.R. § 42.64(c), Patent Owner is filing this motion seeking to
`
`exclude certain deposition testimony and documents offered at the Sondheimer
`
`Deposition because such testimony and documents are directed to matters outside
`
`of the scope of Dr. Sondheimer’s cross-examination testimony and his direct
`
`testimony. As required by 37 C.F.R. § 42.64(a), Patent Owner raised timely
`
`objections during the Sondheimer Deposition, and therefore preserved its right to
`
`seek the exclusion of such testimony and the use of such documents.
`
`In its Reply (Paper No. 0030), Petitioner has not attempted to rely upon the
`
`portions of Dr. Sondheimer’s deposition transcript or the documents Patent Owner
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`seeks to exclude. If Petitioner never relies upon the above-referenced testimony or
`
`files and relies on Exs. 1031-1033, this motion will be moot. However, if
`
`Petitioner does rely upon the aforementioned testimony at oral argument or file any
`
`of the aforementioned documents in any future submission, Patent Owner has
`
`timely objected and seeks to exclude such testimony and documents for the reasons
`
`expressed herein. Patent Owner provides herein citations to the record of the
`
`improper questions, objections, and answers. Pursuant to 37 C.F.R. § 42.64(c), no
`
`prior authorization is needed to file this motion.
`
`
`
`In its Petition for Inter Partes Review of U.S. Patent No. 8,642,012,
`
`Petitioner relied on the expert declaration of Dr. Neal Sondheimer (“the
`
`Sondheimer declaration,” Ex. 1002) in support of its challenges to the claims. In
`
`his declaration, Dr. Sondheimer offered his opinion on “the technical feasibility of
`
`combining certain exhibits, and … the feasibility of these combinations.” (Ex.
`
`1002 at ¶ 6). However, during re-examination, Petitioner improperly questioned
`
`Dr. Sondheimer concerning topics far outside of the scope of his cross-examination
`
`testimony and outside the scope of his direct testimony in his declaration, as
`
`explained further herein.
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`IPR2015-01117
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`Page 3
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`IV. RE-EXAMINATION TESTIMONY OUTSIDE THE SCOPE OF DR.
`SONDHEIMER’S CROSS-EXAMINATION TESTIMONY SHOULD
`BE EXCLUDED
`
`The scope of cross-examination of a witness is limited to the scope of the
`
`witness’s direct testimony. 37 C.F.R. § 42.53(d)(5)(ii) (“For cross-examination
`
`testimony, the scope of the examination is limited to the scope of the direct
`
`testimony.”). Likewise, the scope of redirect examination or re-examination is
`
`limited to the scope of the witness’s cross-examination. See Corning Gilbert Inc.
`
`v. PPC Broadband, Inc., IPR2013-00346, Paper 48, at 4-5 (PTAB June 23, 2014)
`
`(ordering petitioner to identify which cross-examination questions justified the
`
`introduction of testimony on redirect). Petitioner’s re-examination of Dr.
`
`Sondheimer veered far from the scope of Dr. Sondheimer’s cross-examination
`
`testimony, and, in some instances, beyond the scope of Dr. Sondheimer’s direct
`
`testimony; therefore, the subject questions and answers identified in detail below
`
`are improper and should be excluded.
`
`A. Re-Examination Testimony Concerning Dr. Sondheimer’s
`Background and Experience Treating UCD Patients Should Be
`Excluded
`
`
`
`Dr. Sondheimer’s re-examination testimony concerning Dr. Sondheimer’s
`
`background and experience treating UCD patients is outside the scope of his cross-
`
`examination testimony, and should therefore be excluded. During re-examination,
`
`Petitioner questioned Dr. Sondheimer about his background and experience in the
`
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`Page 4
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`treatment of UCD patients, including clinical details of a study disclosed in a
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`literature reference co-authored by Dr. Sondheimer (Ex. 1033, “the Deardorff
`
`reference”). The aforementioned questions and answers occur at pages 218:17-
`
`224:19; and 269:15-283:14 of the Sondheimer Deposition transcript. Patent Owner
`
`properly objected to this line of questioning at the time as outside the scope of Dr.
`
`Sondheimer’s cross-examination testimony, and the above-referenced citations
`
`include Patent Owner’s timely objections. See, e.g., Ex. 2012 at 275:9-12.
`
`Contrary to Petitioner’s assertions (Ex. 2012 at 281:17-20) and as noted on the
`
`record at 275:9-12, Patent Owner never questioned Dr. Sondheimer concerning his
`
`curriculum vitae or background in the field of UCD treatment during cross-
`
`examination. Additionally, Patent Owner never questioned Dr. Sondheimer
`
`concerning the Deardorff reference, nor elicited any responses relating to that
`
`reference on cross-examination.
`
`Furthermore, Dr. Sondheimer’s declaration does not discuss any clinical
`
`details of the study reported in the Deardorff reference. Indeed, Dr. Sondheimer’s
`
`discussion of the Deardorff reference in his declaration is limited to asserting in his
`
`background section that he was a co-author on the study that “identified a novel
`
`genetic mechanism causing a urea cycle defect” (see Ex. 1002 at ¶12).
`
`Therefore, Petitioner’s questions and Dr. Sondheimer’s corresponding
`
`answers directed to Dr. Sondheimer’s background and experience in the treatment
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`of UCD patients, including clinical details of the study underlying the Deardorff
`
`reference, occurring at pages 218:17-224:19 and 269:15-283:14 of the Sondheimer
`
`Deposition transcript, are outside the scope of Dr. Sondheimer’s cross-examination
`
`testimony, as well as the scope of his direct testimony, and should be excluded.
`
`B. Re-Examination Testimony Concerning Dr. Sondheimer’s
`Definition of a Person of Ordinary Skill Should Be Excluded
`
`Dr. Sondheimer’s re-examination testimony concerning Dr. Sondheimer’s
`
`definition of a person of ordinary skill in the art (“POSA”) and whether he
`
`qualifies as a POSA is outside the scope of his cross-examination testimony and
`
`should therefore be excluded. During re-examination, Petitioner questioned Dr.
`
`Sondheimer concerning his definition of a person of ordinary skill in the art and
`
`whether he considered his experience to qualify him as such a person. The
`
`aforementioned questions and answers occur at pages 225:1-231:1 of the
`
`Sondheimer Deposition transcript. Patent Owner properly objected to this line of
`
`questioning at the time as being outside the scope of Dr. Sondheimer’s cross-
`
`examination testimony, and the above-referenced citations include Patent Owner’s
`
`timely objections. See, e.g., 225:4, 227:23.
`
`Patent Owner never questioned Dr. Sondheimer concerning his definition of
`
`a POSA, much less posed any questions directed to Dr. Sondheimer’s professional
`
`background nor elicited any responses concerning whether he considered himself
`
`to qualify as a POSA. Moreover, Dr. Sondheimer’s declaration does not contain
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`any discussion of whether Dr. Sondheimer considers himself to qualify as a person
`
`of ordinary skill in the art. Thus, Petitioner’s questions and Dr. Sondheimer’s
`
`corresponding answers, occurring at pages 225:1-231:1 of the Sondheimer
`
`Deposition transcript, are outside the scope of at least Dr. Sondheimer’s cross-
`
`examination testimony, as well as the scope of his direct testimony, and should be
`
`excluded.
`
`C. Re-Examination Testimony Concerning Fernandes is Outside the
`Scope of Dr. Sondheimer’s Cross-Examination Testimony and
`Should Be Excluded
`
`Dr. Sondheimer’s re-examination testimony concerning how a person of
`
`ordinary skill in the art would interpret Figure 17.2 of Fernandes and directed to
`
`other chapters of the book in which Fernandes is found is outside the scope of his
`
`cross-examination testimony, and should therefore be excluded. Although Patent
`
`Owner solicited testimony from Dr. Sondheimer regarding select topics within the
`
`Fernandes reference, on re-examination, Petitioner asked questions that were
`
`clearly outside the scope of the Dr. Sondheimer’s cross-examination testimony.
`
`Specifically, Petitioner questioned Dr. Sondheimer regarding the subject matter of
`
`other chapters in the book in which Fernandes (Chapter 17) is found. In addition,
`
`Petitioner questioned Dr. Sondheimer concerning whether a POSA would currently
`
`utilize the Fernandes guidelines to treat UCD patients and how a POSA would
`
`interpret Figure 17.2 of Fernandes today. Additionally, Petitioner asked Dr.
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`Sondheimer whether a POSA, as of the priority date of U.S. Patent No. 8,404,215,
`
`would have had specified disagreements with the teachings of Fernandes. The
`
`aforementioned questions and answers occur at pages 242:2-16; 243:15-244:19;
`
`249:22-251:6; and 252:10-254:14. Patent Owner properly objected to this line of
`
`questioning at the time as being outside the scope of Dr. Sondheimer’s cross-
`
`examination testimony, and the above-referenced citations include Patent Owner’s
`
`timely objections. See, e.g., Ex. 2012 at 242:4, 13; 250:2-3, 24; 253:12-13. Patent
`
`Owner never questioned Dr. Sondheimer concerning other book chapters in the
`
`book that contains Fernandes. Furthermore, Patent Owner did not question Dr.
`
`Sondheimer concerning whether a POSA would currently use the guidelines in
`
`Fernandes much less how a POSA would interpret Fig. 17.2 today or whether a
`
`POSA would have disagreed with aspects of the teachings of Fernandes as of the
`
`relevant priority date. In addition, Dr. Sondheimer’s declaration does not contain
`
`any discussion of the specific subject matter of the above-cited questions relating
`
`to Fernandes.
`
`Thus, Petitioner’s questions and Dr. Sondheimer’s corresponding answers,
`
`occurring at pages 242:2-16; 243:15-244:19; 249:22-251:6; and 252:10-254:14 of
`
`the Sondheimer Deposition transcript, are outside the scope of at least Dr.
`
`Sondheimer’s cross-examination testimony, as well as Dr. Sondheimer’s direct
`
`testimony, and should be excluded.
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`IPR2015-01117
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`Page 8
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`D. Re-Examination Testimony Concerning Typical Gelatin Capsule
`Volume, the Density of Sodium Phenylbutyrate, and Calculation
`of the Amount of Sodium Phenylbutyrate Dosed in Brusilow ’91
`Should Be Excluded
`
`Dr. Sondheimer’s re-examination testimony concerning typical gelatin
`
`capsule volume, the density of sodium phenylbutyrate, and the calculation of the
`
`amount of sodium phenylbutyrate dosed in Brusilow ’91 is outside the scope of his
`
`cross-examination testimony, and should therefore be excluded. Petitioner
`
`questioned Dr. Sondheimer on re-examination about typical gelatin capsule
`
`volumes as of the date of publication of Brusilow ’91. Petitioner also asked Dr.
`
`Sondheimer to calculate the volume of sodium phenylbutyrate administered in
`
`Brusilow ’91 utilizing a value for the density of sodium phenylbutyrate provided
`
`for the first time to Dr. Sondheimer in a document offered as Exhibit 1032 and to
`
`speculate on the dosing practices likely used in such a study. The aforementioned
`
`questions and answers occur at pages 259:5-260:9; and 261:7-265:2 of the
`
`Sondheimer Deposition transcript. Patent Owner properly objected to this line of
`
`questioning at the time as being outside the scope of Dr. Sondheimer’s cross-
`
`examination testimony, and the above-referenced citations include Patent Owner’s
`
`timely objections. See, e.g., Ex. 2012 at 259:7, 24; 260:6; 261:9; 262:19; 263:22;
`
`264:16, 24.
`
`Indeed, during Dr. Sondheimer’s cross-examination, Patent Owner never
`
`raised or addressed the typical gelatin capsule volume as of the date of the
`
`IPR2015-01117
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`Page 9
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`publication of Brusilow ’91, or the density of sodium phenylbutyrate, nor posed
`
`any questions requiring Dr. Sondheimer to calculate the alleged volume of sodium
`
`phenylbutyrate administered in Brusilow ’91 or to speculate as to dosing practices
`
`not disclosed in the reference. Moreover, Dr. Sondheimer’s declaration does not
`
`contain any discussion of typical gelatin capsule volumes, the density of sodium
`
`phenylbutyrate, the calculated volume of sodium phenylbutyrate administered, or
`
`of typical means to do so.
`
`Thus, Petitioner’s questions and Dr. Sondheimer’s corresponding answers,
`
`occurring at pages 259:5-260:9; and 261:7-265:2 of the Sondheimer Deposition
`
`transcript, are outside the scope of at least Dr. Sondheimer’s cross-examination
`
`testimony, as well as Dr. Sondheimer’s direct testimony, and thus should be
`
`excluded.
`
`E. Re-Examination Testimony Directed to the Relevant Time Period
`for a POSA’s Evaluation of Alleged Prior Art Regarding the Rate
`of Conversion of PAA to PAGN Should Be Excluded
`
`Dr. Sondheimer’s re-examination testimony concerning the relevant time
`
`period for a POSA’s evaluation of alleged prior art regarding the rate of conversion
`
`of PAA to PAGN is outside the scope of his cross-examination testimony, and
`
`therefore should be excluded. Petitioner questioned Dr. Sondheimer on re-
`
`examination about what time period a POSA would consider when evaluating
`
`whether prior art publications disclosed the rate of conversion of PAA to PAGN in
`
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`Page 10
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`healthy subjects. The aforementioned questions and answers occur at pages
`
`266:14-267:15 of the Sondheimer Deposition Transcript. Patent Owner properly
`
`objected to this line of questioning at the time as being outside the scope of Dr.
`
`Sondheimer’s cross-examination testimony, and the above-referenced citations
`
`include Patent Owner’s timely objections. See, e.g., Ex. 2012 at 266:19; 267:12-
`
`13. During cross-examination, Patent Owner never questioned Dr. Sondheimer
`
`concerning the relevant time period a POSA would consider for the disclosure of
`
`the rate of conversion of PAA to PAGN in healthy subjects. In addition, the
`
`Sondheimer declaration does not contain any discussion of the relevant time period
`
`for such consideration.
`
`Thus, Petitioner’s questions and Dr. Sondheimer’s corresponding answers,
`
`occurring at pages 266:14-267:15 of the Sondheimer Deposition transcript, are
`
`outside the scope of at least Dr. Sondheimer’s cross-examination testimony, as
`
`well as his direct testimony, and thus should be excluded.
`
`F.
`
`Re-Examination Testimony Concerning Table 11.9 of Blau Should
`Be Excluded
`
`Dr. Sondheimer’s re-examination testimony concerning Table 11.9 of Blau
`
`is outside the scope of his cross-examination testimony, as well as his direct
`
`testimony, and therefore should be excluded. Petitioner questioned Dr.
`
`Sondheimer on re-examination concerning whether hypothetical deviations from
`
`the specimen collection guidelines set forth in Table 11.9 of Blau would be
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`Page 11
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`reported in scientific publications. The aforementioned questions and answers
`
`occur at pages 289:9-21 of the Sondheimer Deposition transcript. Patent Owner
`
`properly objected to this line of questioning at the time as being outside the scope
`
`of Dr. Sondheimer’s cross-examination testimony, and the above-referenced
`
`citations include Patent Owner’s timely objections. See, e.g., Ex. 2012 at 289:14.
`
`On cross-examination, Patent Owner never questioned Dr. Sondheimer nor elicited
`
`any responses concerning whether hypothetical deviations from the specimen
`
`collection guidelines set forth in Table 11.9 of Blau would be reported in scientific
`
`publications. Moreover, the Sondheimer declaration does not contain any
`
`discussion of whether potential deviations from the collection guidelines set forth
`
`in Blau would be reported in the literature.
`
`Thus, Petitioner’s questions and Dr. Sondheimer’s corresponding answers,
`
`occurring at pages 289:9-21 of the Sondheimer Deposition transcript, are outside
`
`the scope of Dr. Sondheimer’s cross-examination testimony, as well as his direct
`
`testimony, and thus should be excluded.
`
`G. Exhibits 1031-1033 Should be Excluded
`
`
`
`As an initial matter, Exhibits 1031-1033 have not been properly made of
`
`record in this case, and the Board should not consider them for that reason.
`
`Although Petitioner listed those three exhibits on its updated exhibit list (Paper 31)
`
`filed with the reply (Paper 30), the reply does not refer to or discuss those exhibits
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`at all. In fact, Petitioner did not file those exhibits, and they cannot be found in
`
`PRPS. Thus, Patent Owner need not exclude those un-filed, un-referenced
`
`exhibits. However, out of an abundance of caution, in case the Board does
`
`consider these exhibits to be part of the record in this case, the Patent Owner
`
`moves to exclude them for the following reasons.
`
`As discussed above, during the Sondheimer Deposition, Petitioner
`
`introduced documents not previously of record but identified as Exhibits 1031-
`
`1033. Patent Owner objected to Exhibits 1031-1033 offered at the Sondheimer
`
`deposition because all such documents fall outside the scope of Dr. Sondheimer’s
`
`cross-examination testimony.
`
`
`
`Petitioner offered Exhibits 1031-1033 to be the following:
`
`• Ex. 1031: Curriculum vitae of Dr. Sondheimer, updated as of January
`
`2016;
`
`• Ex. 1032: Information from an API supplier website regarding sodium
`
`phenylbutyrate; and
`
`• Ex. 1033: Deardorff et al., “Complex Management of a Patient with a
`
`Contiguous Xp11.4 Gene Deletion Involving Ornithine
`
`Transcarbamylase: A Role for Detailed Molecular Analysis in
`
`Complex Presentations of Classical Diseases,” Mol. Gen. Metab.,
`
`94(4), 498-502 (2008).
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`As discussed above, pursuant to 37 C.F.R. § 42.53(d)(5)(ii), “[f]or cross-
`
`examination testimony, the scope of the examination is limited to the scope of the
`
`direct testimony.” Petitioner introduced Exhibits 1031-1033 during the
`
`Sondheimer deposition to elicit testimony to support new lines of argument that are
`
`beyond the scope of Patent Owner’s cross-examination of Dr. Sondheimer, and
`
`therefore, are not appropriate subject matter for Petitioner’s re-examination of Dr.
`
`Sondheimer. As discussed above, Patent Owner never questioned Dr. Sondheimer
`
`about his background or his curriculum vitae, let alone his curriculum vitae
`
`updated as of January, 2016. In addition, Patent Owner did not question Dr.
`
`Sondheimer about the Deardorff reference or his background treating UCD
`
`patients. Finally, Patent Owner did not question Dr. Sondheimer about the density
`
`of sodium phenylbutyrate or ask any questions relating to Ex. 1032. Thus, Patent
`
`Owner objects to Exhibits 1031-1033 as untimely and lacking relevance under
`
`Federal Rule of Evidence 403 because such documents are outside the scope of
`
`Patent Owner’s cross-examination of Dr. Sondheimer and Dr. Sondheimer’s direct
`
`testimony; therefore, Exhibits 1031-1033 should be excluded.
`
`Additionally, Patent Owner objects to the use of Exhibit 1032 on the
`
`grounds of lack of foundation and/or authenticity under Federal Rule of Evidence
`
`901 because there is no testimony establishing the accuracy or correctness of the
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`Page 14
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`data provided therein, and therefore, no testimony establishing the accuracy or
`
`correctness of any calculations or conclusions drawn from such data.
`
`V. CONCLUSION
`
`
`
`Petitioner has failed to rely upon any of the above-cited portions of Dr.
`
`Sondheimer’s deposition testimony or file the documents marked as Exhibits 1031-
`
`1033 as evidence prior to the filing of this motion. In the event that Petitioner does
`
`rely on such testimony or file such documents, Patent Owner has timely and
`
`properly filed this motion respectfully requesting that the Board exclude the above-
`
`referenced testimony and documents for the reasons explained herein.
`
`Date: 2016 June 16
`
`
`Respectfully submitted,
`
`By: / M.C. Phillips /
`Matthew C. Phillips
`Registration No. 43,403
`Backup Counsel for Patent Owner
`
`IPR2015-01117
`
`
`
`Page 15
`
`
`
`CERTIFICATE OF SERVICE
`
`
`
`I hereby certify that on June 16, 2016, copies of the foregoing PATENT
`
`OWNER’S MOTION TO EXCLUDE EVIDENCE and all documents filed with it
`
`were served via electronic mail, as agreed to by counsel, upon the following
`
`counsel for the Petitioners:
`
`David H. Silverstein: dsilverstein@axinn.com
`
`Aziz Burgy: aburgy@axinn.com
`
`Elizabeth J. Holland: eholland@goodwinproctor.com
`
`Cynthia Lambert Hardman: chardman@goodwinprocter.com
`
`/ M.C. Phillips /
`Matthew C. Phillips
`Registration No. 43,403
`
`
`
`IPR2015-01117
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