IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`ARGENTUM PHARMACEUTICALS LLC,
`
`Petitioner,
`
`RESEARCH CORPORA'TiON T}-3CI§NOLOGiES, INC.,
`Patent Owner.
`
`Case No. IPRZOI6-00204
`
`Patent No. RE 38,551
`
`PATENT OWNER’S OBJECTION TO EVIDENCE UNDER
`
`37 C.F.R. § 42.64(!))(1)
`
`DC: ()()8»'133l-I
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`ARGENTUM PHARMACEUTICALS LLC,
`
`Petitioner,
`
`RESEARCH CORPORA'TiON T}-3CI§NOLOGiES, INC.,
`Patent Owner.
`
`Case No. IPRZOI6-00204
`
`Patent No. RE 38,551
`
`PATENT OWNER’S OBJECTION TO EVIDENCE UNDER
`
`37 C.F.R. § 42.64(!))(1)
`
`DC: ()()8»'133l-I
`
`
`
`lPR2016~00204
`
`0298190100-US03
`
`Pursuant to 3'7 C.F.R. § 42.64(b)(1) and the Federal Rules of Evidence
`
`(“FRE”), as applied by the Patent Trial and Appeal Board (“Board”), Patent Owner
`
`submits the following objections to evidence submitted by Petitioner with its
`
`Petition. These objections are timely filed within ten business days of the May 23,
`
`2016 trial institution (Paper No. 19).
`
`Patent Owner reserves the right to present furI:her objections to these or
`
`additional Exhibits submitted by Petitioner, as allowed by the applicable rules or
`
`other authority, including without limitation upon conclusion of cross-examination
`
`of Dr. Binghe Wang.
`
`Exhibit 1002 — Declaration of Dr. Binghe Wang
`
`Exhibit 1002 cited in the Petition is inadmissible for at least the following
`
`reasons, including under the FRE:
`
`Dr. Wang’s testimony in Exhibit 1002 is based on inadmissible hearsay, and
`
`it relies upon facts and data not reasonably relied upon in forming an expert
`
`opinion under FRE 703, including to the extent the testimony relies on Exhibit
`
`1003, to which Patent Owner objects below.
`
`Dr. Wang relies on Exhibit 1003, the Declaration of Dr. Clayton Heathcock
`
`from IPR2014-01126. As discussed below, Exhibit 1003 is hearsay, and is
`
`inadmissible under FRE 802.
`
`in addition, Exhibit 1003 is not the type of facts or
`
`data upon which an expert would rely in ‘forming their own independent opinion as
`
`
`
`iPR2016—00204
`
`029819.0100—US03
`
`required by FRE 702 and 703. Exhibit 1003 is merely the untested personai
`
`opinion of Dr. Heathcoek, not even rising to the ievel of a peer-reviewed journal,
`
`much less a learned treatise.
`
`Exhibit 1003 - Declaration of Dr. Clayton Heathceck from IPR2014-01126
`
`Exhibit 1003 cited in the Petition is inadmissible for at least the following
`
`reasons, including under the FRE:
`
`Dr. Heati1cock’s testimony in Exhibit 1003 is hearsay under FRE 801(0), and
`
`inadmissible under FRE 802.
`
`Exhibit 1014 - Development of New Stereoisomeric Drugs
`
`Exhibit 1014 cited in the Petition is inadmissible for at least the foilowing
`
`reasons, including under the FRE:
`
`Exhibit 1014 lacks authentication, and thus is inadmissible under FRE 901.
`
`Exhibit 1014 appears to be a printout of a website describing issues relating to the
`
`deveiopment of individual enantiomers and racemates. However, Petitioner may
`
`not rely on the content of the website printout without proper authentication.
`
`Petitioner has not provided the testimony of any witness with personal knowledge
`
`of the website, and therefore the exhibit lacks authentication. See Nestle Oil OYJ
`
`12. Reg Syntlletic Fuels, LLC, iPR2013~00578, Paper 53 at 3-4 (P.T.A.B. Mar. 12,
`
`2015}
`
`
`
`iPR2016—00204
`
`0298190100-US03
`
`Exhibit 1014 is inadmissible also under FRE 402 because it is not relevant.
`
`Although the printout states a “Publication Date” of “5/1/1992,” Petitioner
`
`provides no evidence that the content as it appears in the printout was publicly
`
`available as of that date. The webpage that is presently located at the URL printed
`
`in the footer of Exhibit 1014 indicates that it was “Last Updated" on “12/07/2014,”
`
`welt-beyond the priority date in this case. Exhibit 1014 also lacks retevance to this
`
`proceeding because Petitioner does not substantively rely on it in either the Petition
`
`or the Declaration of Dr. Binghe Wang.
`
`Exhibit 1021 - FDA Guideline for Industry
`
`Exhibit 1021 cited in the Petition is inadmissible for at least the following
`
`reasons, including under the FRE:
`
`Exhibit 1021 lacks authentication, and thus is inadmissible under FRE 901.
`
`Petitioner provides no evidence that Exhibit 1021 is what Petitioner claims it is or
`
`any evidence of the resource from which Exhibit 1021 was obtained.
`
`
`
`IPR2016-00204
`
`0298190100-US03
`
`Dated: June 7, 2016
`
`Respectfully submitted,
`
`COVINGTON & BURLING LLP
`One CityCenter
`850 Tenth Street NW
`
`Washington, DC 20001
`(202) 662-6000
`
`
`By §Q¢»e«a.é¢t
`Andrea G. R’e/ister
`Registration No.: 36,253
`Jennifer L. Robbins
`
`Registration No.: 61,163
`Enrique D. Longton
`Registration No.: 47,304
`Attorneys for Patent Owner
`
`
`
`IPR2016-00204
`
`0298190100-US03
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on this 7th day of June 2016, the foregoing Patent
`
`Owner’s Objection to Evidence Under 37 C.F.R. § 42.64(b)(1) was served by
`
`electronic mail, by agreement of the parties, on the following counsei of record for
`
`Petitioner:
`
`Matthew J. Dowd (MatthewDowd@andrewskurthcom)
`Justin W. Crotty (JustinCr0tty@andrewsi<urth.com)
`Andrews Kurth LLP
`
`1350 I Street, NW, Suite 1100
`
`Washington DC 20005
`
`Dated: June 7 2016
`
`s’ #m\“‘‘\5
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`
`Andrea G. Ecéister, Esq:
`Registration No. 36,253
`
`X‘:
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