UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`PHARMACOSMOS A/S,
`Petitioner
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`v.
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`LUITPOLD PHARMACEUTICALS, INC.,
`Patent Owner
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`Patent No. 7,754,702
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`Title: METHODS AND COMPOSITIONS FOR ADMINISTRATION OF IRON
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`Inter Partes Review No. 2015-01490
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`PETITIONER’S OPPOSITION TO PATENT OWNER’S
`MOTION TO EXCLUDE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`PHARMACOSMOS A/S,
`Petitioner
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`v.
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`LUITPOLD PHARMACEUTICALS, INC.,
`Patent Owner
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`Patent No. 7,754,702
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`Title: METHODS AND COMPOSITIONS FOR ADMINISTRATION OF IRON
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`Inter Partes Review No. 2015-01490
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`PETITIONER’S OPPOSITION TO PATENT OWNER’S
`MOTION TO EXCLUDE
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`IPR2015-01490
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`Patent No. 7,754,702
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`TABLE OF CONTENTS
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` RELIEF REQUESTED .................................................................................... 1
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`I.
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`II.
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` APPLICABLE PRINCIPLES .......................................................................... 1
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`III. ARGUMENT ................................................................................................... 2
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`A. Patent Owner’s Attempt To Exclude Dr. Manzi’s Testimony (Ex. 1054) Is
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`Untimely And Misleading ...................................................................................... 2
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`B. Wang (Exhibit 1055) And Its Supplementary Content (Exhibit 1056) Are
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`Admissible .............................................................................................................. 3
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` Exhibits 1055 and 1056 Are Relevant ......................................................... 3
`1.
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` Exhibits 1055 and 1056 Are Not Hearsay ................................................... 5 2.
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` Statements Citing To Exhibits 1055 and 1056 Should Not Be Excluded ... 5 3.
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`C. Keating (Exhibit 1057) Is Admissible ............................................................. 6
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` Exhibit 1057 Is Relevant .............................................................................. 6
`1.
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` Exhibit 1057 Is Not Hearsay ........................................................................ 6 2.
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` Statements Citing To Exhibit 1057 Should Not Be Excluded ..................... 7 3.
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`D. The Galenica Group Presentation (Exhibit 1059) Is Admissible .................... 7
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` Exhibit 1059 Is Relevant .............................................................................. 7
`1.
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` Exhibit 1059 Is Not Hearsay ........................................................................ 8 2.
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` Exhibit 1059 Is Properly Authenticated ....................................................... 8 3.
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` Statements Citing To Exhibit 1059 Should Not Be Excluded ..................... 9 4.
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`Patent No. 7,754,702
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`E. The Charles River Monograph For C57BL/6 Mice (Exhibit 1060) Is
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`Admissible .............................................................................................................. 9
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` Exhibit 1060 Is Relevant ............................................................................ 10
`1.
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` Exhibit 1060 Is Not Hearsay ...................................................................... 10 2.
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` Exhibit 1060 Is Properly Authenticated ..................................................... 11 3.
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` Statements Citing To Exhibit 1060 Should Not Be Excluded ................... 11 4.
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`F. The Webpage For The San Diego Zoo (Exhibit 1061) Is Admissible .......... 12
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` Exhibit 1061 Is Relevant ............................................................................ 12
`1.
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` Exhibit 1061 Is Not Hearsay ...................................................................... 12 2.
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` Exhibit 1061 Is Properly Authenticated ..................................................... 13 3.
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` Statements Citing To Exhibit 1061 Should Not Be Excluded ................... 13 4.
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`G. Document Regarding Imferon®’s Recall (Exhibit 1063) Is Admissible ...... 14
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` Exhibit 1063 Is Not Hearsay ...................................................................... 14
`1.
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` Exhibit 1063 Is Properly Authenticated ..................................................... 14 2.
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` Statements Citing To Exhibit 1063 Should Not Be Excluded ................... 15 3.
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`IV. CONCLUSION .............................................................................................. 15
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`IPR2015-01490
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`I.
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`RELIEF REQUESTED
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`Patent No. 7,754,702
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`Petitioner Pharmacosmos A/S (“Petitioner”) timely provides the following
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`opposition to Patent Owner’s Motion to Exclude Evidence (Paper 44; “Motion”),
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`filed on August 9, 2016. Luitpold Pharmaceuticals (“Patent Owner”) seeks to
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`exclude not only Petitioner’s Exhibits 1055, 1056, 1057, 1059, 1060, 1061 and
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`1063 and portions of Patent Owner’s own expert’s deposition testimony, Exhibit
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`1054, (the “Challenged Exhibits”), but also Petitioner’s arguments that cite to these
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`exhibits, even if such citation is incidental to the argument. Neither position is
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`tenable. Contrary to Patent Owner’s representations, the Challenged Exhibits are
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`admissible under the Federal Rules of Evidence and the Code of Federal
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`Regulations, and the bulk of Petitioner’s related arguments should be permitted
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`regardless of such admissibility. The Motion should be denied in its entirety.
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`II. APPLICABLE PRINCIPLES
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`Motions to exclude are limited to “challeng[ing] the admissibility of
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`evidence” under the Federal Rules of Evidence (“FRE”) or any Board rules that
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`supersede them, see Office Patent Trial Practice Guide, 77 Fed. Reg. 48756, 48767
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`(Aug. 14, 2012), and as the movant, Patent Owner carries the burden of proof to
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`establish entitlement to having the evidence excluded. See 37 C.F.R. § 42.20(c).
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`A motion to exclude evidence also must “explain why the evidence is not
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`admissible (e.g., relevance or hearsay), but may not be used to challenge the
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`sufficiency of the evidence to prove a particular fact.” Office Patent Trial Practice
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`Guide, 77 Fed. Reg. at 48767.
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`Patent No. 7,754,702
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`Moreover, 37 C.F.R. § 42.64(a) requires that an “objection to the
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`admissibility of deposition evidence … be made during the deposition.” As such,
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`“[a]n objection at the time of examination … must be noted on the record.” Office
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`Patent Trial Practice Guide, 77 Fed. Reg. at 48772; see also id. at 48767.
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`III. ARGUMENT
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`A. Patent Owner’s Attempt To Exclude Dr. Manzi’s Testimony (Ex.
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`1054) Is Untimely And Misleading
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`Patent Owner seeks to exclude testimony of their own expert, Dr. Manzi, on
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`the issue of the reference, Beshara (Ex. 2041), for alleged “misinterpretation” of
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`that testimony. Patent Owner’s request should be denied for at least the following
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`reasons.
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`First, it is not timely, as Patent Owner failed to raise any objection to such
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`testimony in Patent Owner’s Objections to Petitioner’s Reply and Opposition
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`Evidence. Objections made during Dr. Manzi’s Deposition, cited as the basis for
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`timeliness in the Motion, were not made to any characterization of the testimony,
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`and therefore the Motion raises a new issue.
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`Second, Patent Owner, in the Motion, misleadingly contends that Petitioner
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`cited Dr. Manzi as confirming that “data in Beshara actually corresponds to data in
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`the working examples and detailed description of the ‘702 patent.’” Motion at 13.
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`In contrast, Petitioner stated that “Dr. Manzi, Patent Owner’s expert, confirmed
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`that Beshara discloses ‘the properties of VIT-45’” that being the only reference to
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`Patent No. 7,754,702
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`Dr. Manzi’s testimony relating to Beshara. Paper 34 at 24. This accurately
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`represented Dr. Manzi’s answer to the question regarding, “why Beshara was cited
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`in the ‘702 patent,” to which she replied “[t]he authors are describing the behavior
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`or properties of VIT-45.” Exhibit 1054 at 66:25-67:6.
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`The ‘702 patent itself references Beshara in this regard. Exhibit 1001 at
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`12:35-47. The statement that “data in Beshara corresponds to data in the working
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`examples and detailed description of the ‘702 patent” is supported by a comparison
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`of the documents themselves and citation of Beshara in the patent. Finally,
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`whatever the characterization made by Petitioner, there is no basis for excluding
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`Dr. Manzi’s testimony at 68:19-70:10 (Exhibit 1054), which was not relied upon
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`by Petitioner.
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`B. Wang (Exhibit 1055) And Its Supplementary Content (Exhibit
`1056) Are Admissible
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`Patent Owner contends that Wang (Exhibit 1055) and it Supplementary
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`Content (Exhibit 1056) should be excluded under FRE 401, 402, 801 and 802
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`because they are irrelevant and are inadmissible hearsay. Motion at 3-4. Petitioner
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`disagrees for at least the following reasons.
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`1.
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`Exhibits 1055 and 1056 Are Relevant
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`Patent Owner contends that Exhibits 1055 and 1056 are irrelevant, arguing
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`that they were published in 2015 and, therefore, cannot be used to show the state of
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`the art in January 2006. Id. at 3. Petitioner cites to Exhibit 1055, a retrospective
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`review of risk associated with intravenous iron products administered between
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`2003 and 2013 in the Journal of the American Medical Association, as evidence to
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`refute misleading statements made by Patent Owner that iron dextran was recalled
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`from the market as part of its mischaracterization of the state of the art in 2006.
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`See Paper 34 at 21-23; Paper 23 at 8. Exhibit 1055 reports that iron dextran was
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`regularly used at high doses around the filing date of U.S. Patent No. 7,754,702
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`(“the ‘702 patent”) and at least through 2013. See Paper 34 at 21-23. The
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`Petitioner cites to Exhibit 1056 as further evidence that although iron dextran has
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`been administered at high doses, only 0.0307 percent of the 68,305 patients
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`discussed in Wang experienced anaphylaxis. Id. at 21. Contrary to Patent
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`Owner’s assertions, Wang does disclose information about individual years - see,
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`for example, Figure 1 that shows the number of first time users of iron dextran,
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`among other iron carbohydrate complexes, in six-month periods between January
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`2003 and July 2013. Exhibit 1055 at 3.
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`That Exhibits 1055 and 1056 were published after the priority date of the
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`‘702 patent is immaterial. See Liberty Mutual v. Progressive Casualty Insurance,
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`CBM2012-00002, slip op. at 64 (PTAB January 23, 2014) (Paper 66) (“It is well
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`settled that references that have publication dates after the critical date may be
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`cited to show the state of the art at or around the time of the invention.” (citing Eli
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`Lilly and Co. v. Barr Labs., Inc., 251 F.3d 955, 969-70 (Fed. Cir. 2001))).
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`2.
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`Exhibits 1055 and 1056 Are Not Hearsay
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`Patent Owner further asserts that Exhibits 1055 and 1056 are inadmissible
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`hearsay under FRE 801, 802 because they were offered for the truth of the matter
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`asserted. Motion at 4. However, Petitioner does not proffer Exhibits 1055 and
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`1056 to provide the truth of the matters asserted therein, but rather for what the
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`Exhibits describe.1 See, e.g., Joy Techs, Inc. v. Manbeck, 751 F. Supp. 225, 233
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`n.2 (D.D.C. 1990), judgment aff’d, 959 F.2d 226 (Fed. Cir. 1992); FRE 801(c)
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`1997 Adv. Comm. Note (“If the significance of an offered statement lies solely in
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`the fact that it was made, no issue is raised as to the truth of anything asserted, and
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`the statement is not hearsay.”). As indicated above, Exhibits 1055 and 1056 are
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`offered to refute misleading statements made by Patent Owner regarding a
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`purportedly general recall of iron dextran as they describe the use of iron dextran
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`prior to and after the filing date of the ‘702 patent. See Paper 34 at 21-23.
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`Therefore, Petitioner maintains that Exhibits 1055 and 1056 should be admissible
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`in these proceedings because they are not inadmissible hearsay. See FRE 801, 803,
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`807.
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`3.
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`Statements Citing To Exhibits 1055 and 1056 Should Not Be
`Excluded
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`1 FRE 801 expressly requires that a statement, in order to be considered hearsay,
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`must be offered “to prove the truth of the matter asserted in the statement,” not
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`simply offered in support of a position. FRE 801(c)(2).
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`As Exhibits 1055 and 1056 are admissible in these proceedings under the
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`Federal Rules of Evidence, the portions of Petitioner’s Opposition to Patent
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`Owner’s Motion to Amend (“Opposition”) that cite to such exhibits as exemplary
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`support should not be excluded.
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`C. Keating (Exhibit 1057) Is Admissible
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`Patent Owner contends that Exhibit 1057 should be excluded under FRE
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`401, 402, 801 and 802 and 901 because it lacks relevance and is inadmissible
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`hearsay. Motion at 4-6. Petitioner disagrees for at least the following reasons.
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`1.
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`Exhibit 1057 Is Relevant
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`Petitioner disagrees with Patent Owner’s objections that Exhibit 1057 is not
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`relevant, as it is properly cited as evidence that the Beshara reference discloses the
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`properties of VIT-45. See Paper 34 at 24. Exhibit 1057 is offered to show that
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`while the title of Beshara indicates that it relates to polymaltose, Beshara discloses
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`the properties of iron carboxymaltose. Id. In its Motion to Amend, Patent Owner
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`has cited Beshara as relating to iron polymaltose and not relevant without
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`considering whether Beshara impacts the patentability of proposed substitute
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`claims covering iron carboxymaltose. Paper 24 at 15. Moreover, the fact that
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`Exhibit 1057 was published after the priority date of the ‘702 patent is immaterial.
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`See Liberty Mutual v. Progressive Casualty Insurance, CBM2012-00002, slip op.
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`at 64 (PTAB January 23, 2014) (Paper 66).
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`2.
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`Exhibit 1057 Is Not Hearsay
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`Petitioner disagrees with Patent Owner’s contentions that Exhibit 1057 is
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`inadmissible hearsay. Contrary to the Patent Owner’s position, Petitioner does not
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`proffer Exhibit 1057 to provide the truth of the matters asserted, but rather for what
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`the Exhibit describes. Exhibit 1057 is a 2015 review that describes the
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`effectiveness and safety of ferric carboxymaltose as a treatment for iron deficiency,
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`and is cited to support the argument that Beshara discloses the properties of ferric
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`carboxymaltose. See Paper 34 at 24.
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`3.
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`Statements Citing To Exhibit 1057 Should Not Be Excluded
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`As Exhibit 1057 is admissible in these proceedings under the Federal Rules
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`of Evidence, the portions of Petitioner’s Opposition that cite this exhibit as
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`exemplary support should not be excluded irrespective of the admissibility of the
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`exhibit.
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`D.
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`The Galenica Group Presentation (Exhibit 1059) Is Admissible
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`Patent Owner contends that Exhibit 1059 should be excluded under FRE
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`401, 402, 801, 802 and 901 because it lacks relevance and authentication, and that
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`it is inadmissible hearsay. Motion at 6-8. Petitioner disagrees for at least the
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`following reasons.
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`1.
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`Exhibit 1059 Is Relevant
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`Petitioner disagrees with Patent Owner’s objections that Exhibit 1059 is not
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`relevant, as it is properly cited to refute recent misleading statements made by
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`Patent Owner that iron dextran, in general, was recalled from the market as part of
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`its mischaracterization of the state of the art of iron carbohydrate use in 2006. See
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`Patent No. 7,754,702
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`Paper 34 at 21-23; Paper 23 at 8. Exhibit 1059 is evidence that sales of an iron
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`dextran product, InFed®, continued from August 2013 to December 2015,
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`demonstrating that iron dextran products are still currently used, contrary to the
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`statements made by Patent Owner. See Paper 34 at 21.
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`Moreover, the fact that Exhibit 1059 was published after the priority date of
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`the ‘702 patent is immaterial. See Liberty Mutual v. Progressive Casualty
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`Insurance, CBM2012-00002, slip op. at 64 (PTAB January 23, 2014) (Paper 66).
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`2.
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`Exhibit 1059 Is Not Hearsay
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`Petitioner disagrees with Patent Owner’s contentions that Exhibit 1059 is
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`inadmissible hearsay. Contrary to the Patent Owner’s position, Petitioner does not
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`proffer Exhibit 1059 to provide the truth of the matters asserted but rather for what
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`the Exhibit describes. Exhibit 1059 is a presentation generated by the Galenica
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`Group that describes the sales of an iron dextran product, INFeD®, and is cited to
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`support the argument that iron dextran products are still currently used. See Paper
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`34 at 21.
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`3.
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`Exhibit 1059 Is Properly Authenticated
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`Petitioner disagrees with Patent Owner’s objections that Exhibit 1059 lacks
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`authentication. Printouts of electronic information have long been held to be
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`admissible. See, e.g., Lorraine v. Markel American Insurance Co., 241 F.R.D. 534,
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`576-583 (D. Md. 2007). In determining whether printouts of websites are
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`sufficiently authenticated, courts consider the “distinctive characteristics” of the
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`Patent No. 7,754,702
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`website. See Premier Nutrition, Inc. v. Organic Food Bar, Inc., No. SACV-06-
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`0827 AG (RNBx), 2008 WL 1913163, at *6 (C.D. Cal. Mar. 27, 2008) aff’d, 327
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`F. App’x 723 (9th Cir. 2009). For example, printouts of webpages have been
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`determined to be sufficiently authenticated when the printouts include dates and
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`web addresses. See id. (finding printouts of webpages were authenticated when
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`printouts included web addresses and dates). Exhibit 1059 is a printout of an
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`electronically stored publication, and includes copyright information “April 2016 -
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`© Galenica Group,” which uniquely identifies the publication. See Ex. 1059 at 4.
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`Thus, Exhibit 1059 includes sufficient indicia of authenticity on its face.
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`Furthermore, Exhibit 1059 is self-authenticating because it contains
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`authenticating trade inscriptions, such as copyright (©) indicating the respective
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`party’s ownership and control over the material of the Exhibit. See FRE 902(7);
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`Exhibit 1059 at 2.
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`4.
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`Statements Citing To Exhibit 1059 Should Not Be Excluded
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`As Exhibit 1059 is admissible in these proceedings under the Federal Rules
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`of Evidence, the portions of Petitioner’s Opposition that cite to this exhibit should
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`not be excluded. Moreover, Petitioner’s arguments that cite to Exhibit 1059 should
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`be admitted irrespective of the admissibility of the exhibit as Exhibit 1059 is cited
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`as exemplary support.
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`E.
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`The Charles River Monograph For C57BL/6 Mice (Exhibit 1060)
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`Is Admissible
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`Patent Owner contends that Exhibit 1060 should be excluded under FRE
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`Patent No. 7,754,702
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`401, 402, 801, 802 and 901 because it lacks relevance and authentication, and that
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`it is inadmissible hearsay. Motion at 8-9. Petitioner disagrees for at least the
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`following reasons.
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`1.
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`Exhibit 1060 Is Relevant
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`Patent Owner contends that Exhibit 1060 is irrelevant and is cited as an
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`“attempt to be ‘cute’ and deflect attention.” Id. at 8. Petitioner disagrees as it is
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`properly cited as evidence of the weight of a mouse, a species to which a claimed
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`iron carbohydrate complex can be administered. See Paper 34 at 7. Petitioner
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`argued that because the proposed substitute claims do not specify the species of the
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`subject being treated, they are not enabled by the specification because the recited
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`dose would have different consequences on different species, and refer to a mouse
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`and an elephant as examples well known to exhibit small and large weights,
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`respectively. See id. at 6-7. Exhibits 1060 and 1061 were then cited to provide
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`bases for specific comparisons to the claimed value. Id. Accordingly, Exhibit
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`1060 is relevant evidence of the weight of one species that can be administered a
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`dose within the claimed range. See id. at 7.
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`2.
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`Exhibit 1060 Is Not Hearsay
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`Petitioner disagrees with Patent Owner’s contention that Exhibit 1060 is
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`inadmissible hearsay as it falls within an exception to hearsay under FRE 803.
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`FRE 803(17) provides that “Market Reports and Similar Commercial Publications”
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`Patent No. 7,754,702
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`are an exception to the rules against hearsay because they are produced by
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`trustworthy sources. See Advisory Committee Notes to FRE 803. “The basis of
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`trustworthiness is general reliance by the public or by a particular segment of it,
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`and the motivation of the compiler to foster reliance by being accurate.” Id.
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`Exhibit 1060 is a commercial publication by Charles River Laboratories, a
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`reputable company that provides animal research models. Thus, Exhibit 1060 falls
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`within an exception to hearsay under FRE 803(17). See Susemihl v. United S.S.
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`Co. (Bahamas) Ltd., 1988 WL 97288, at *2 (holding that a Company’s brochure
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`was admissible under FRE 803(17)).
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`3.
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`Exhibit 1060 Is Properly Authenticated
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`Petitioner disagrees with Patent Owner’s objections that Exhibit 1060 lacks
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`authentication. Exhibit 1060 is a printout of an electronically stored publication.
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`As indicated above, in determining whether printouts of websites are sufficiently
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`authenticated, courts will consider the “distinctive characteristics” of the website.
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`Exhibit 1060 includes copyright information “© 2011, Charles River Laboratories
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`International, Inc.” and a website address, which uniquely identifies the
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`publication. See Ex. 1060 at 4. Thus, Exhibit 1060 includes sufficient indicia of
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`authenticity on its face. See Premier Nutrition, Inc., 2008 WL 1913163, at *6.
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`4.
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`Statements Citing To Exhibit 1060 Should Not Be Excluded
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`As Exhibit 1060 is admissible in these proceedings under the Federal Rules
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`of Evidence, the portions of Petitioner’s Opposition that cite to this exhibit should
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`Patent No. 7,754,702
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`not be excluded. Moreover, as it is self-evident that different species of animals
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`can have different weights, Petitioner’s arguments that cite to Exhibit 1060 as
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`exemplary support should be admitted irrespective of the admissibility of the
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`exhibit.
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`F. The Webpage For The San Diego Zoo (Exhibit 1061) Is
`Admissible
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`Patent Owner contends that Exhibit 1061 should be excluded under FRE
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`401, 402, 801, 802 and 901 because it lacks relevance and authentication, and that
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`it is inadmissible hearsay. Motion at 9-11. Petitioner disagrees for at least the
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`following reasons.
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`1.
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`Exhibit 1061 Is Relevant
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`Patent Owner contends that Exhibit 1061 is irrelevant and is cited as
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`“attempt to be ‘cute’ and deflect attention.” Id. at 9. Petitioner disagrees with
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`Patent Owner’s objections that Exhibit 1061 is not relevant, as it is properly cited
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`as evidence of the weight of an elephant, a species to which a claimed iron
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`carbohydrate complex can be administered. See Paper 34 at 7. Exhibit 1061 is
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`thus relevant for the same reasons addressed above in connection with Exhibit
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`1060.
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`2.
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`Exhibit 1061 Is Not Hearsay
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`Petitioner disagrees with Patent Owner’s contentions that Exhibit 1061 is
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`inadmissible hearsay. Contrary to the Patent Owner’s position, Petitioner does not
`Active 27645772.1
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`IPR2015-01490
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`proffer Exhibit 1061 to provide the truth of the matters asserted but rather for what
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`Patent No. 7,754,702
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`
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`the Exhibit describes. Exhibit 1061 is a printout of a page of a website that
`
`describes the weight and characteristics of an elephant, and is cited to allow a
`
`specific comparison of the claimed doses of iron to the body weight of an elephant
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`and, together with Exhibit 1060, to a mouse to illustrate the vastly different
`
`consequences to each.
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`3.
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`Exhibit 1061 Is Properly Authenticated
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`Petitioner disagrees with Patent Owner’s objections that Exhibit 1061 lacks
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`authentication. Exhibit 1061 is a printout of a webpage. As indicated above, in
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`determining whether printouts of websites are sufficiently authenticated, courts
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`will consider the “distinctive characteristics” of the website. Exhibit 1061 is a
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`printout of a webpage, which includes copyright information “©2016 San Diego
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`Zoo Global - All Rights Reserved,” a webpage address and an access date. See
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`Exhibit 1061 at 1. Thus, Exhibit 1061 includes sufficient indicia of authenticity on
`
`its face. See Premier Nutrition, Inc., 2008 WL 1913163, at *6.
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`4.
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`Statements Citing To Exhibit 1061 Should Not Be Excluded
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`As Exhibit 1061 is admissible in these proceedings under the Federal Rules
`
`of Evidence, the portions of Petitioner’s Opposition that cite to this exhibit should
`
`not be excluded. Moreover, Petitioner’s arguments that cite to Exhibit 1061 as
`
`exemplary support should be admitted irrespective of the admissibility of the
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`exhibit for the same reasons discussed in connection with Exhibit 1060.
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`G. Document Regarding Imferon®’s Recall (Exhibit 1063) Is
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`Admissible
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`Patent No. 7,754,702
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`Patent Owner contends that Exhibit 1063 should be excluded under FRE
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`801, 802 and 901 because it lacks authentication and that it is inadmissible hearsay.
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`Motion at 11-12. Petitioner disagrees for at least the following reasons.
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`1.
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`Exhibit 1063 Is Not Hearsay
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`
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`Petitioner disagrees with Patent Owner’s contentions that Exhibit 1063 is
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`inadmissible hearsay. Contrary to the Patent Owner’s position, Petitioner does not
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`proffer Exhibit 1063 to provide the truth of the matters asserted but rather for what
`
`the Exhibit describes. Exhibit 1063 is cited as evidence to refute recent misleading
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`statements made by Patent Owner alleging the general recall of iron dextran, and to
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`provide support for Petitioner’s contrary argument that only a single iron dextran
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`product, Imferon®, was recalled by the FDA. See Paper 34 at 22.
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`2.
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`Exhibit 1063 Is Properly Authenticated
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`Petitioner disagrees with Patent Owner’s objections that Exhibit 1063 lacks
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`authentication. Exhibit 1063 is a printout of a webpage. As indicated above, in
`
`determining whether printouts of websites are sufficiently authenticated, courts
`
`will consider the “distinctive characteristics” of the website. Exhibit 1063 is a
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`printout of a webpage, which includes copyright information “Copyright (c) 2016
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`Informa Business Intelligence, Inc., an Informa Company. All Rights Reserved,” a
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`webpage address and an access date. See Ex. 1063 at 3. Thus, Exhibit 1063
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`includes sufficient indicia of authenticity on its face. See Premier Nutrition, Inc.,
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`Patent No. 7,754,702
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`
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`2008 WL 1913163, at *6.
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`3.
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`Statements Citing To Exhibit 1063 Should Not Be Excluded
`
`As Exhibit 1063 is admissible in these proceedings under the Federal Rules
`
`of Evidence, the portions of Petitioner’s Opposition cite to this exhibit should not
`
`be excluded. Moreover, Petitioner’s arguments that cite to Exhibit 1063 should be
`
`admitted irrespective of the admissibility of the exhibit as Exhibit 1063 is cited as
`
`exemplary support.
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`IV. CONCLUSION
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`For at least these reasons, Patent Owner’s Motion should be denied.
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`August 23, 2016
`DATE
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`
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`Respectfully submitted,
`
`BAKER BOTTS L.L.P.
`
`/s/ Lisa Kole
`ATTORNEYS FOR
`PHARMACOSMOS
`
`Lisa Kole (PTO Reg. No. 35,225)
`Steven Lendaris (PTO Reg. No. 53,202)
`Paul Ragusa (PTO Reg. No. 38,587)
`Jennifer Tempesta (PTO Reg. No. 59,021)
`Baker Botts L.L.P.
`30 Rockefeller Plaza
`New York, NY 10112
`Telephone: (212) 408-2500
`Facsimile: (212) 408-2501
`Email: lisa.kole@bakerbotts.com
`steven.lendaris@bakerbotts.com
`paul.ragusa@bakerbotts.com
`jennifer.tempesta@bakerbotts.com
`
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`Active 27645772.1
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`IPR2015-01490
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`Patent No. 7,754,702
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`CERTIFICATE OF SERVICE ON PATENT OWNER
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`
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`The undersigned hereby certifies that the foregoing PETITIONER’S
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`OPPOSITION TO PATENT OWNER’S MOTION TO EXCLUDE is being served
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`on August 23, 2016 by filing through the Patent Review Processing System and
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`delivering a copy via email to the counsel for Patent Owner at the addresses of
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`record:
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`Respectfully submitted,
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`/s/ Lisa Kole
`
`Lisa Kole (PTO Reg. No. 35,225)
`Baker Botts L.L.P.
`30 Rockefeller Plaza
`New York, NY 10112
`Telephone: (212) 408-2500
`Facsimile: (212) 408-2501
`Email: lisa.kole@bakerbotts.com
`
`
`
`George E. Quillin
`Michael D. Kaminski
`Foley & Lardner L.L.P
`3000 K Street, N.W., Suite 600
`Washington, D.C. 20007
`Email: gquillin@foley.com
`mkaminski@foley.com
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`
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`Dated: August 23, 2016
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`
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`Active 27645772.1
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