UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`PHARMACOSMOS A/S,
`Petitioner,
`
`v.
`
`LUITPOLD PHARMACEUTICALS, INC.,
`Patent Owner.
`
`
`
`
`
`_______________
`
`IPR2015-01490; Patent 7,754,702 B2
`____________________________________________________________
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`
`PATENT OWNER
`MOTION TO EXCLUDE
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`
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`4826-0190-6229.3
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`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`PHARMACOSMOS A/S,
`Petitioner,
`
`v.
`
`LUITPOLD PHARMACEUTICALS, INC.,
`Patent Owner.
`
`
`
`
`
`_______________
`
`IPR2015-01490; Patent 7,754,702 B2
`____________________________________________________________
`
`
`PATENT OWNER
`MOTION TO EXCLUDE
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`4826-0190-6229.3
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`IPR2015-01490
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`TABLE OF CONTENTS
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`
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`I.
`
`II.
`
`INTRODUCTION ........................................................................................... 1
`
`PATENT OWNER TIMELY OBJECTED ..................................................... 2
`
`III. ARGUMENT ................................................................................................... 3
`
`A.
`
`Exs. 1055 and 1056 and the Portions of Petitioner’s Opposition
`that Rely on Exs. 1055 and 1056 Should be Excluded ......................... 3
`
`1.
`
`2.
`
`3.
`
`Exs. 1055 and 1056 are Irrelevant (FRE 401,402) ..................... 3
`
`Exs. 1055 and 1056 are Inadmissible Hearsay(FRE 801,
`802) ............................................................................................. 4
`
`The Portions of Petitioner’s Opposition that Rely on Exs.
`1055 and 1056 Should be Excluded ........................................... 4
`
`B.
`
`Ex. 1057 and the Portions of Petitioner’s Opposition that Rely
`on Ex. 1057 Should be Excluded .......................................................... 4
`
`1.
`
`2.
`
`3.
`
`Ex. 1057 is Irrelevant (FRE 401, 402) ........................................ 5
`
`Ex. 1057 is Inadmissible Hearsay (FRE 801, 802) ..................... 5
`
`The Portions of Petitioner’s Opposition that Rely on Ex.
`1057 Should be Excluded ........................................................... 6
`
`C.
`
`Ex. 1059 and the Portions of Petitioner’s Opposition that Rely
`on Ex. 1059 Should be Excluded .......................................................... 6
`
`1.
`
`2.
`
`3.
`
`4.
`
`Ex. 1059 is Irrelevant (FRE 401,402) ......................................... 6
`
`Ex. 1059 is Inadmissible Hearsay (FRE 801, 802) ..................... 7
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`Ex. 1059 is Not Authenticated (FRE 901) .................................. 7
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`The Portions of Petitioner’s Opposition that Rely on Ex.
`1059 Should be Excluded ........................................................... 8
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`D.
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`Ex. 1060 and the Portions of Petitioner’s Opposition that Rely
`on Ex. 1060 Should be Excluded .......................................................... 8
`
`1.
`
`2.
`
`3.
`
`4.
`
`Ex. 1060 is Not Relevant (FRE 401,402) ................................... 8
`
`Ex. 1060 is Inadmissible Hearsay (FRE 801, 802) ..................... 8
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`Ex. 1060 is Not Authenticated (FRE 901) .................................. 9
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`The Portions of Petitioner’s Opposition that Rely on Ex.
`1060 Should be Excluded ........................................................... 9
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`E.
`
`Ex. 1061 and the Portions of Petitioner’s Opposition that Rely
`on Ex. 1061 Should be Excluded .......................................................... 9
`
`1.
`
`2.
`
`3.
`
`4.
`
`Ex. 1061 is Not Relevant (FRE 401,402) ................................... 9
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`Ex. 1061 is Inadmissible Hearsay (FRE 801, 802) ................... 10
`
`Ex. 1061 is Not Authenticated (FRE 901) ................................ 10
`
`The Portions of Petitioner’s Opposition that Rely on Ex.
`1061 Should be Excluded ......................................................... 11
`
`F.
`
`Ex. 1063 and the Portions of Petitioner’s Opposition that Rely
`on Ex. 1063 Should be Excluded ........................................................ 11
`
`1.
`
`2.
`
`3.
`
`Ex. 1063 is Inadmissible Hearsay (FRE 801, 802) ................... 12
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`Ex. 1063 is Not Authenticated (FRE 901) ................................ 12
`
`The Portions of Petitioner’s Opposition that Rely on Ex.
`1063 Should be Excluded ......................................................... 12
`
`G.
`
`Petitioner’s Mischaracterization of Dr. Manzi’s Testimony
`Should be Excluded ............................................................................. 13
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`IV. CONCLUSION .............................................................................................. 14
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`TABLE OF AUTHORITIES
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`CASES
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`EMC Corp. v. PersonalwebTechs., LLC, Case IPR2013-0084 (PTAB May 15,
`2014) ................................................................................................................... 11
`
`FLIR Sys., Inc. v. Leak Surveys, Inc., IPR2014-00411 (PTAB Sep. 5, 2014) ......... 12
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`Ford Motor Co. v. Cruise Control Techs. LLC, IPR2014-00291 (PTAB June 29,
`2015) ................................................................................................................... 12
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`In re Homestore.com, Inc. Sec. Litig., 347 F. Supp. 2d 769 (C.D. Cal. 2004) ........ 10
`
`St. Luke’s Cataract & Laser Inst., P.A. v. Sanderson, No. 8:06-CV-223-T-MSS,
`2006 WL 1320242 (M.D. Fla. May 12, 2006) ................................................... 11
`
`Standard Innovation Corporation v. Lelo, Inc., IPR2014-00148 (PTAB April 23,
`2015) ................................................................................................................... 10
`
`United States v. Jackson, 208 F. 3d 633 (7th Cir. 2000) ......................................... 10
`
`Victaulic Co. v. Tieman, 499 F.3d 227, 236 (3d Cir. 2007), as amended (Nov. 20,
`2007) ............................................................................................................ 10, 11
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`STATUTES
`
`37 C.F.R. § 42.64(b)(1) .............................................................................................. 2
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`37 C.F.R. § 42.64(c) ................................................................................................... 1
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`I.
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`INTRODUCTION
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`Under 37 C.F.R. § 42.64(c) and the Scheduling Order (Paper 12), Luitpold
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`Pharmaceuticals (“Patent Owner”) moves to exclude Pharmacosmos Exs. 1055,
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`1056, 1057, 1059, 1060, 1061, and 1063, and the objected-to portions of Ex. 1054,
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`the transcript from the deposition of Dr Adriana Manzi, on the following grounds:
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`Exhibit Reason to Exclude
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`1055/
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`Exs. 1055 and 1056 (Wang and Online Supplementary Content) were
`
`1056
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`published in 2015 and should not be relied on for evidence of the state
`
`of the art as of January 2006 – the effective filing date, 9 years earlier.
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`1057
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`Same. Ex. 1057 (Keating) published in 2015 and should not be relied
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`on for evidence of the state of the art as of January 2006 – the effective
`
`filing date, nine years earlier.
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`1059
`
`Same. Ex. 1059 (Galencia), purportedly published in 2016, is not
`
`authenticated and should not be relied on for evidence of the state of the
`
`art as of January 2006, 10 years later.
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`1060
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`1061
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`Ex. 1060 (mouse weight ) is not authenticated and not relevant.
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`Ex. 1061 is an unauthenticated webpage purportedly from the San Diego
`
`Zoo website and not relevant
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`1063
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`Ex. 1063 is an unauthenticated article from a website accessed in 2016
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`and should not be relied upon for evidence of the Imferon recall in 1991.
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`1054
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`Petitioner should not be allowed to rely on portions of Dr. Manzi’s
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`testimony that it has mischaracterized.
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`
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`Petitioner relied on Exs. 1054, 1055, 1056, 1057, 1059, 1060, 1061, and
`
`1063 in its Reply to Patent Owner Response (“Reply”) and Opposition to Patent
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`Owner’s Motion to Amend (“Opp.”), filed June 20, 2016. Patent Owner also
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`moves to exclude the portions of Petitioner’s Reply and Opposition which rely on
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`these exhibits.
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`II.
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`PATENT OWNER TIMELY OBJECTED
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`As for Ex. 1054, Patent Owner timely objected during the deposition of Dr.
`
`Manzi. Also, in accordance with 37 C.F.R. § 42.64(b)(1), Patent Owner timely
`
`objected to Ex. 1055, 1056, 1057, 1059, 1060, 1061, and 1063 as lacking
`
`relevance, unauthenticated, and inadmissible hearsay. See Patent Owner’s
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`Objections to Evidence (Papers 14 and 35). Petitioner served no supplemental
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`evidence regarding the exhibits Patent Owner now seeks to exclude. Rather,
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`Petitioner filed unauthorized papers (Papers 16 and 36) prematurely responding to
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`Patent Owner’s timely filed objections to evidence.
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`III. ARGUMENT
`A. Exs. 1055 and 1056 and the Portions of Petitioner’s Opposition
`that Rely on Exs. 1055 and 1056 Should be Excluded
`
`Exhibits 1055 and 1056 were published in 2015, and ostensibly used by
`
`Petitioner to show the state of the art in January 2006. Nine years after the
`
`effective filing date is too late to be relevant and reliable. First introduced in the
`
`Opposition, they purportedly relate to the “clinical use” of iron dextran “well after
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`the recall” of iron dextran. Opp. 21. Exs. 1055 and 1056 lack relevance under
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`Federal Rule of Evidence (“FRE”) 401, 402, and are hearsay and “hearsay within
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`hearsay” (but not subject to any hearsay exceptions) under FRE 801, 802.
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`Exs. 1055 and 1056 are Irrelevant (FRE 401,402)
`
`1.
`Petitioner acknowledges that Ex. 1055 and its supplementary online content
`
`(Ex. 1056) are not prior art. Opp. 21. Indeed, the alleged publication date of Ex.
`
`1055 is November 17, 2015, more than 9 years after the January 2006 priority date
`
`of the ’702 patent. Neither exhibit provides a breakdown of the data collected over
`
`a 10 year period (the majority of which is after the filing date of the ’702 patent)
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`for the relevant time period at or around the filing date of the ’702 patent. Thus,
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`contrary to Petitioner’s assertion in its Opposition (Opp. 21-23), neither Ex. 1055
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`nor Ex. 1056 bear on knowledge of the state of the art at or around the time of
`
`filing. Consequently, they should be excluded.
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`2.
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`Exs. 1055 and 1056 are Inadmissible Hearsay(FRE 801,
`802)
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`Exs. 1055 and 1056 are inadmissible hearsay because Petitioner offers them
`
`to prove the truth of the matter asserted, but they do not fall within any hearsay
`
`exception. Petitioner’s expert does not discuss these at all. Specifically, Petitioner
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`offers Exs. 1055 and 1056 just by themselves as evidence of the safety of
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`intravenous iron dextran and the purported safety of Marchasin (Ex. 1047). Opp.
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`21-23. However, Petitioner offers no testimonial evidence regarding the accuracy
`
`of the contents of Ex. 1055 and 1056. Thus, they are inadmissible hearsay.
`
`3.
`
`The Portions of Petitioner’s Opposition that Rely on Exs.
`1055 and 1056 Should be Excluded
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`Petitioner’s Opposition relies on Exs. 1055 and 1056 as purportedly
`
`indicating the state of the art at the time of filing of the ’702 patent. Opp. 21-23.
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`Patent Owner timely objected to this portion of Petitioner’s Opposition. Patent
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`Owner’s Objections (Paper 35, 3). These portions of Petitioner’s Opposition
`
`relying on Exs. 1055 and 1056 should be excluded.
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`B.
`
`Ex. 1057 and the Portions of Petitioner’s Opposition that Rely on
`Ex. 1057 Should be Excluded
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`Ex. 1057 was published in 2015. Ex. 1057, p. 1. Petitioner first introduced
`
`Ex. 1057 as “extrinsic evidence” to support a conclusion that another exhibit, Ex.
`
`2041 (Beshara), relates to iron carboxymaltose. Opp. 24. Ex. 1057 lacks
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`relevance under FRE 401, 402, and is hearsay and hearsay within hearsay (not
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`subject to any hearsay exceptions) under FRE 801, 802. There is no testimony
`
`about it—no expert discussion about the alleged connection. Also, there is no
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`testimony whether the terminology used in Keating is defined in the same way as
`
`the terminology in Beshara.
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`Ex. 1057 is Irrelevant (FRE 401, 402)
`
`1.
`Ex. 1057 is not prior art to the ’702 patent. The alleged publication date of
`
`Ex. 1057 is 2015, 9 years after the January 2006 priority date of the ’702 patent.
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`Unlike a reference published two or three years after a filing date, Ex. 1057 –
`
`published almost a decade after January 2006 – does not address what was known
`
`in 2006. Thus, Ex. 1057 cannot show knowledge of the state of the art at or
`
`around the time of filing.
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`Ex. 1057 is Inadmissible Hearsay (FRE 801, 802)
`
`2.
`Ex. 1057 is inadmissible hearsay because Petitioner offers it to prove the
`
`truth of the matter asserted, but the exhibit does not fall within any hearsay
`
`exception. Specifically, Petitioner offers Ex. 1057 as evidence that Beshara
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`“discloses the properties of VIT-45.” Opp. 24. However, Petitioner offers no
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`testimonial evidence at all regarding its relation to Beshara or regarding a
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`POSITA’s understanding of Ex. 1057.
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`3.
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`The Portions of Petitioner’s Opposition that Rely on Ex.
`1057 Should be Excluded
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`Petitioner’s Opposition relies on Ex. 1057 as purportedly providing evidence
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`that Beshara relates to properties of VIT-45 despite all evidence to the contrary in
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`Beshara itself. Opp. 24. Because Keating is inadmissible as irrelevant and
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`inadmissible hearsay, any portions of Petitioner’s Opposition relying on Keating
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`should also be excluded.
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`C. Ex. 1059 and the Portions of Petitioner’s Opposition that Rely on
`Ex. 1059 Should be Excluded
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`Ex. 1059 is an alleged presentation from the “Galencia group” purportedly
`
`showing sales of an iron dextran product from August 2013 to December 2015.
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`What difference does this make to the current issues? NONE! Petitioner
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`introduced Ex. 1059 as evidence for the continued use of iron dextran (Opp. 21).
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`The effective filing date is January 2006. How can sales from mid-2013 to 2015
`
`show “the state of the art” in January 2006? They can’t.
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`Ex. 1059 is Irrelevant (FRE 401,402)
`
`1.
`Ex. 1059 is not prior art to the ’702 patent. Petitioner has not established
`
`when Ex. 1059 was published or the source of the exhibit. The front page of Ex.
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`1059 indicates an alleged publication date of April 2016, more than 10 years after
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`the January 2006 priority date of the ’702 patent. Even if Petitioner incongruently
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`asserted that sales of an iron dextran product from “August 2013 to December
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`2015” demonstrate the state of the art at or around the time of the invention
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`(January 2006), Petitioner would be wrong. Contrary to such a Petitioner’s
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`assertion, Ex. 1059 does not evidence knowledge of the state of the art at or
`
`around the time of filing.
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`Ex. 1059 is Inadmissible Hearsay (FRE 801, 802)
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`2.
`Ex. 1059 is inadmissible hearsay because Petitioner offers it to prove the
`
`truth of the matter asserted, but the exhibit does not fall within any hearsay
`
`exception. Specifically, Petitioner offers Ex. 1059 as evidence that “iron dextran
`
`products are still currently used.” Opp. 21. However, Petitioner offers no
`
`testimonial evidence regarding the accuracy of the contents of Ex. 1059. Thus, Ex.
`
`1059 is inadmissible hearsay.
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`Ex. 1059 is Not Authenticated (FRE 901)
`
`3.
`Ex. 1059 is not self-authenticating. Petitioner provides no specific exception
`
`in FRE 902 under which Ex. 1059 would fall. Nor has Petitioner produced
`
`evidence sufficient to support a finding that the exhibit is what Petitioner claims it
`
`is. For example, Petitioner has not provided any indication of where Ex. 1059 is
`
`obtained from or the affidavit of a person having the necessary knowledge of Ex.
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`1059 in order to authenticate it. Petitioner did not even attempt to cure despite an
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`opportunity to do so and its mere assertion that the exhibit is self-authenticating
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`lacks any basis in law or fact.
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`4.
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`The Portions of Petitioner’s Opposition that Rely on Ex.
`1059 Should be Excluded
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`Petitioner’s Opposition relies on Ex. 1059 as purportedly providing evidence
`
`for the continued use of iron dextran. Opp. 21. Patent Owner timely specifically
`
`objected to this portion of Petitioner’s Opposition. Patent Owner’s Objections
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`(Paper 35, 3). Because Ex. 1059 is irrelevant, inadmissible hearsay, and
`
`unauthenticated, any portions of Petitioner’s Opposition relying on Ex. 1059
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`should also be excluded.
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`D. Ex. 1060 and the Portions of Petitioner’s Opposition that Rely on
`Ex. 1060 Should be Excluded
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`Petitioner relies on Ex. 1060 for the weight of a mouse. Opp. 7. It is
`
`irrelevant, hearsay, and not authenticated.
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`Ex. 1060 is Not Relevant (FRE 401,402)
`
`1.
`The weight of a mouse is not relevant to any pending issue. It is cited by
`
`Petitioner in an attempt to be “cute” and to deflect attention.
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`Ex. 1060 is Inadmissible Hearsay (FRE 801, 802)
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`2.
`Ex. 1060 is inadmissible hearsay because Petitioner offers it to prove the
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`truth of the matter asserted, but it does not fall within any hearsay exception. Opp.
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`7. It is inadmissible hearsay.
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`Ex. 1060 is Not Authenticated (FRE 901)
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`3.
`Ex.1060 is not self-authenticating. Petitioner provides no specific exception
`
`under FRE 902 for allowing Ex. 1060. Petitioner has not provided any affidavit of
`
`a person having the necessary knowledge of the exhibit in order to authenticate it.
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`4.
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`The Portions of Petitioner’s Opposition that Rely on Ex.
`1060 Should be Excluded
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`Petitioner’s Opposition relies on Ex. 1060 to demonstrate alleged non-
`
`enablement of Patent Owner’s substitute claims. Opp. 7. Patent Owner timely
`
`specifically objected to this portion of Petitioner’s Opposition. Patent Owner’s
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`Objections (Paper 35, 3). Because Ex. 1060 is irrelevant, inadmissible hearsay,
`
`and unauthenticated, these portions of Petitioner’s Opposition relying on Ex. 1060
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`should also be excluded.
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`E.
`
`Ex. 1061 and the Portions of Petitioner’s Opposition that Rely on
`Ex. 1061 Should be Excluded
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`Similar to the mouse, Ex. 1061 is a purported webpage about elephants.
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`Opp. 7. It is irrelevant, hearsay, and not authenticated.
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`Ex. 1061 is Not Relevant (FRE 401,402)
`
`1.
`The weight of an elephant is not relevant to any pending issue. It too is cited
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`by Petitioner in an attempt to be “cute” and deflect attention.
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`Ex. 1061 is Inadmissible Hearsay (FRE 801, 802)
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`2.
`Ex. 1061 is inadmissible hearsay because Petitioner offers it to prove the
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`truth of the matter asserted, but the exhibit does not fall within any hearsay
`
`exception. Opp. 7. Thus, Ex. 1061 is inadmissible hearsay.
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`Ex. 1061 is Not Authenticated (FRE 901)
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`3.
`Ex. 1061 is a website ostensibly accessed by Petitioner in 2016. Websites
`
`are not self-authenticating. See, e.g., In re Homestore.com, Inc. Sec. Litig., 347 F.
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`Supp. 2d 769, 782 (C.D. Cal. 2004) (“Printouts from a web site do not bear the
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`indicia of reliability demanded for other self-authenticating documents under Fed.
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`R. Evid. 902”).
`
`As this Board has recognized, FRE 901 “requires that the proponent produce
`
`evidence sufficient to support a finding that an item is what the proponent claims it
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`is.” Standard Innovation Corporation v. Lelo, Inc., IPR2014-00148, Paper 41 at
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`10 (PTAB April 23, 2015). Thus, “[w]hen offering a printout of a webpage into
`
`evidence to prove the website’s contents, the proponent of the evidence must
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`authenticate the information from the website itself, not merely the printout.” Id.
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`See also Victaulic Co. v. Tieman, 499 F.3d 227, 236 (3d Cir. 2007), as amended
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`(Nov. 20, 2007) (citing United States v. Jackson, 208 F. 3d 633, 638 (7th Cir.
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`2000)). “To authenticate printouts from a website, the party proffering the evidence
`
`must produce some statement or affidavit from someone with knowledge of the
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`website . . . for example a web master or someone else with personal knowledge
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`would be sufficient.” EMC Corp. v. PersonalwebTechs., LLC, Case IPR2013-
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`0084, Paper 64 at p. 45 (PTAB May 15, 2014) (quoting St. Luke’s Cataract &
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`Laser Inst., P.A. v. Sanderson, No. 8:06-CV-223-T-MSS, 2006 WL 1320242, at *2
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`(M.D. Fla. May 12, 2006)). See also Victaulic, 499 F.3d 227, 236.
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`Petitioner failed to authenticate Ex. 1061 with any type of “statement or
`
`affidavit from someone with knowledge of the website” accordingly,
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`unauthenticated Ex. 1061 should be excluded.
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`4.
`
`The Portions of Petitioner’s Opposition that Rely on Ex.
`1061 Should be Excluded
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`Petitioner’s opposition relies on Ex. 1061 to demonstrate alleged non-
`
`enablement of Patent Owner’s substitute claims. Opp. 7. Patent Owner timely
`
`specifically objected to this portion of Petitioner’s Opposition. Patent Owner’s
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`Objections (Paper 35, 3). Because Ex. 1061 is irrelevant, inadmissible hearsay,
`
`and unauthenticated, any portions of Petitioner’s Opposition relying on Ex. 1061
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`should also be excluded.
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`F.
`
`Ex. 1063 and the Portions of Petitioner’s Opposition that Rely on
`Ex. 1063 Should be Excluded
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`Ex. 1063 is a website purporting to “reproduce” an article from 1991.
`
`Petitioner relies on Ex. 1063 for evidence that an iron dextran product, Imferon®,
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`was recalled by the FDA. Opp. 22.
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`Ex. 1063 is Inadmissible Hearsay (FRE 801, 802)
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`1.
`Ex. 1063 is inadmissible hearsay because Petitioner offers it to prove the
`
`truth of the matter asserted, but it does not fall within any hearsay exception.
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`Specifically, Ex. 1063 is cited as evidence that Imferon was recalled as of the
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`“Posted Date” (Ex. 1063, p. 1) rather than the copyright date of 2016 at the end of
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`the exhibit (Ex. 1063, p. 3). Opp. 22. Thus, Ex. 1063 is inadmissible hearsay. Cf.
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`Standard Innovation, Paper 41 at p. 13-16; Ford Motor Co. v. Cruise Control
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`Techs. LLC, IPR2014-00291, Paper 44 at p. 7-8 (PTAB June 29, 2015); FLIR Sys.,
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`Inc. v. Leak Surveys, Inc., IPR2014-00411, Paper 9 at p.18-19 (PTAB Sep. 5,
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`2014).
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`Ex. 1063 is Not Authenticated (FRE 901)
`
`2.
`As noted above in detail, websites are not self-authenticating. Supra III.E.3.
`
`Furthermore, even if the website itself was authenticated, the original article is not
`
`authenticated nor is it self-authenticating. Accordingly, unauthenticated Ex. 1063
`
`should be excluded.
`
`3.
`
`The Portions of Petitioner’s Opposition that Rely on Ex.
`1063 Should be Excluded
`
`Patent Owner timely specifically objected to this portion of Petitioner’s
`
`Opposition. Patent Owner’s Objections (Paper 35, 3). Because Ex. 1063 is
`
`4826-0190-6229.3
`
`12
`
`
`
`IPR2015-01490
`
`
`
`Patent Owner Motion to Exclude
`
`inadmissible hearsay and not authenticated, any portions of Petitioner’s Opposition
`
`relying on Ex. 1063 should also be excluded.
`
`G.
`
`Petitioner’s Mischaracterization of Dr. Manzi’s Testimony Should
`be Excluded
`
`During her deposition, Petitioner questioned Patent Owner’s expert, Dr.
`
`Manzi, regarding Ex. 2041, Beshara, and its comparison with Example 2 of the
`
`’702 patent. In response, Dr. Manzi testified that she “cannot speculate” and that
`
`“I don’t know if it corresponds to the same study, the same patients. Same
`
`numbers can be obtained in different ways.” Ex. 1054, 70:6-10. Despite this clear
`
`statement by Dr. Manzi, and despite repeated objections by Patent Owner during
`
`the questioning, Petitioner used and mischaracterized Dr. Manzi’s testimony to
`
`allege that she “confirmed” that “data in Beshara actually corresponds to data in
`
`the working examples and detailed description of the ’702 patent.” Opp. 24. Such
`
`misinterpretation is more than simply mistaken, and contrary to the deposition
`
`transcript.
`
`Due to such misinterpretation, the portion of Dr. Manzi’s testimony from
`
`68:19-70:10 should be excluded. Consequently, any portions of Petitioner’s
`
`Opposition relying on this portion of Ex. 1054 should also be excluded.
`
`4826-0190-6229.3
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`13
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`IPR2015-01490
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`
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`Patent Owner Motion to Exclude
`
`IV. CONCLUSION
`For at least the reasons provided above, Patent Owner urges the Board to
`
`grant this motion and exclude exhibits Ex. 1055, 1056, 1057, 1059, 1060, 1061,
`
`and 1063, and the objected-to portions of Ex. 1054, as well as the arguments that
`
`rely on these exhibits.
`
`Date: August 9, 2016
`
`Respectfully submitted,
`
`/George E. Quillin/
`George E. Quillin
`Registration No. 32,792
`
`Michael D. Kaminski
`Registration No. 32,904
`
`Foley & Lardner LLP
`3000 K Street, N.W.
`Suite 600
`Washington, D.C. 20007
`Counsel for Patent Owner
`
`4826-0190-6229.3
`
`14
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`
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`IPR2015-01490
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`
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` Patent Owner Motion to Exclude
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that a copy of the Motion to Exclude is being
`
`served on August 9, 2016, by filing it through the PTAB E2E System as well as
`
`delivering copies via email to the following counsel for the Petitioner:
`
`Lisa Kole
`Baker Botts L.L.P.,
`30 Rockefeller Plaza, 45th Floor,
`New York, NY 10112
`E-mail: lisa.kole@bakerbotts.com
`
`Steven Lendaris
`Baker Botts L.L.P.,
`E-mail: steven.lendaris@bakerbotts.com
`
`Paul Ragusa
`Baker Botts L.L.P.,
`E-mail: paul.ragusa@bakerbotts.com
`
`
`/George E. Quillin/
`George E. Quillin
`Registration No. 32,792
`Counsel for Patent Owner
`
`
`
`4826-0190-6229.3
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