UNITED STATES PATENT AND TRADEMARK OFFICE
`_________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________________
`
`
`
`E. I. DU PONT DE NEMOURS AND COMPANY and
`ARCHER-DANIELS-MIDLAND COMPANY,
`Petitioners,
`
`v.
`
`FURANIX TECHNOLOGIES B.V.,
`Patent Owner
`_________________________
`
`Case IPR2015-01838
`Patent 8,865,921
`_________________________
`
`
`
`
`
`PATENT OWNER’S OBJECTIONS TO EVIDENCE
`SUBMITTED WITH PETITIONERS’ REPLY
`
`
`_________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________________
`
`
`
`E. I. DU PONT DE NEMOURS AND COMPANY and
`ARCHER-DANIELS-MIDLAND COMPANY,
`Petitioners,
`
`v.
`
`FURANIX TECHNOLOGIES B.V.,
`Patent Owner
`_________________________
`
`Case IPR2015-01838
`Patent 8,865,921
`_________________________
`
`
`
`
`
`PATENT OWNER’S OBJECTIONS TO EVIDENCE
`SUBMITTED WITH PETITIONERS’ REPLY
`
`
`
`
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), Patent Owner, Furanix Technologies
`
`B.V. (“Furanix”) objects to the admissibility of the following exhibits filed by
`
`Petitioners with Petitioners’ Reply of September 15, 2016.
`
`In this paper, a reference to “FRE” means the Federal Rules of Evidence a
`
`reference to “CFR” means the Code of Federal Regulations. The ‘921 patent
`
`means US Patent No. 8,865,921.
`
`Furanix’s objections are as follows:
`
`
`
`Exhibit 1030 (WO 2010/111288 A2)
`
`Patent Owners object to Exhibit 1030 under FRE 802 (hearsay). Patent
`
`Owners also object to Exhibit 1030 under FRE 402 (relevance) and FRE 403
`
`(confusing, waste of time), at least because the exhibit does not stand for the
`
`propositions suggested in Petitioners’ Reply and it is not relevant to any issue at
`
`hand in this IPR.
`
`
`
`Exhibit 1029 (US Patent No. 8,519,167)
`
`Patent Owners object to Exhibit 1029 under FRE 802 (hearsay). Patent
`
`Owners also object to Exhibit 1029 under FRE 402 (relevance) and FRE 403
`
`(confusing, waste of time), at least because at least because the exhibit does not
`
`stand for the propositions suggested in Petitioners’ Reply and it is not relevant to
`
`1
`
`
`
`
`
`
`any issue at hand in this IPR. Patent Owner further object to Exhibit 1029 under
`
`37 C.F.R. § 42.23 as constituting improper reply evidence, i.e., it is new evidence
`
`that could have been presented in the Petition for Inter Partes Review.
`
`
`
`Exhibit 1028 (Declaration #2 of Dr. Kevin J. Martin)
`
`Patent Owners object to Exhibit 1028 under 37 C.F.R. § 42.23 because the
`
`exhibit contains improper reply evidence, i.e., new evidence and opinions that
`
`could have been presented in the Petition for Inter Partes Review. For example,
`
`Patent Owners object on this basis under 37 C.F.R. § 42.23 to the following
`
`paragraphs of Exhibit 1028, for at least the following reasons:
`
`(a) Paragraphs 5-7, at least because they improperly expand on Dr. Martin’s
`
`opinion on the definition of a person of ordinary skill in the art, with
`
`reference and to and new opinions on the prior art, including the ‘732
`
`publication (WO/0172732 A2);
`
`(b) Paragraphs 8-19, at least because they improperly provide new opinions
`
`on the the ‘732 publication, the Partenheimer publication, the alleged
`
`motivation to combine the prior art, the yields associated with
`
`Partenheimer, and the ultimate conclusion of supposed obviousness;
`
`(c) Paragraphs 20-28, at least because they improperly provide, for the first
`
`time in this IPR, opinions from Dr. Martin on the ‘318 publication (U.S.
`
`2
`
`
`
`
`
`
`Patent Publication No. 2008/0103318) and its combination with the ‘732
`
`publication and RU ‘177 (RU 448177), along with new opinions on the
`
`‘732 publication and RU ‘177. Dr. Martin’s original declaration, Exhibit
`
`1009, made no mention of the ‘318 publication or any combination of the
`
`‘318 publication with any other prior art, including the ‘732 publication
`
`and RU ‘177, so those new opinions are improper as part of the Reply;
`
`(d) Paragraphs 29-35, at least because they improperly offer opinions on
`
`experiments in the ‘921 patent and commercial viability that could have
`
`been offered in the Petition.
`
`Patent Owners further object to Exhibit 1028 under FRE 802 (hearsay), FRE
`
`702 (improper expert testimony), FRE 703 (bases for expert opinion), FRE 402
`
`(relevance), and FRE 403 (confusing, waste of time) for failing to identify with
`
`particularity the underlying facts and data on which the opinion is based, and 37
`
`CFR § 42.65, as the testimony is not based on sufficient facts or data, is not the
`
`product of reliable principles and methods, and the principles and methods have
`
`not been reliably applied to the facts of the case.
`
`
`
`
`
`3
`
`
`
`
`
`
`
`Dated: September 22, 2016
`
`
`
`Respectfully submitted,
`
`/ Paul M. Richter, Jr. /
`Paul M. Richter, Jr.
`Reg. No. 36,254
`
`ANDREWS KURTH KENYON LLP
`One Broadway
`New York, NY 10004-1007
`Tel: 212-425-7200
`Fax: 212-425-5288
`
`Counsel for Patent Owner Furanix
`Technologies B.V.
`
`4
`
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that the foregoing “PATENT OWNER’S
`
`OBJECTIONS TO EVIDENCE SUBMITTED WITH PETITIONERS’ REPLY”
`
`was served via email as follows:
`
`
`Jonathan W. S. England
`Reg. No. 71,223
`BLANK ROME LLP
`1825 Eye Street NW
`Washington, DC 20006
`Tel (202) 420-2747
`Fax (202) 420-2201
`jwengland@blankrome.com
`
`/ Paul M. Richter, Jr. /
`Paul M. Richter, Jr.
`
`Counsel for Patent Owner Furanix
`Technologies B.V.
`
`
`Michael S. Marcus
`BLANK ROME LLP
`1825 Eye Street NW
`Washington, DC 20006
`Tel (202) 420-3702
`Fax (202) 420-2201
`mmarcus@blankrome.com
`
`Dipu A. Doshi
`Reg. No. 60,373
`BLANK ROME LLP
`1825 Eye Street NW
`Washington, DC 20006
`Tel (202) 420-2604
`Fax (202) 420-2201
`ddoshi@blankrome.com
`
`
`
`
`Dated: September 22, 2016
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