`571-272-7822
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`
`Paper 21 (IPR2016-00281)
`Paper 19 (IPR2016-00282)
`Entered: May 23, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`TEVA PHARMACEUTICALS USA, INC.,
`Petitioner,
`
`v.
`
`MONOSOL RX, LLC,
`
`Patent Owner.
`____________
`
`Case IPR2016-00281 (Patent 8,603,514 B2)
`Case IPR2016-00282 (Patent 8,017,150 B2)1
`____________
`
`Before ERICA A. FRANKLIN, TINA E. HULSE, and
`CHRISTOPHER G. PAULRAJ, Administrative Patent Judges.
`
`FRANKLIN, Administrative Patent Judge.
`
`
`DECISION
`Denying Petitioner’s Motions to Change the Filing Date Accorded and
`Denying Institution of Inter Partes Reviews
`37 C.F.R. §§ 42.71 and 42.108
`
`
`
`1 This Decision relates to and shall be filed in each referenced case.
`
`
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`IPR2016-00281 (Patent 8,603,514 B2)
`IPR2016-00282 (Patent 8,017,150 B2)
`
`
`INTRODUCTION
`I.
`Teva Pharmaceuticals USA, Inc. (“Petitioner”) filed a petition to
`institute an inter partes review of claims 1–3, 9, 15, 62–65, 69–73, and 75 of
`U.S. Patent No. 8,603,514 B2 (Ex. 1001, “the ’514 patent”). Case IPR2016-
`00281 (“IPR281”), Paper 1. Petitioner also filed a petition to institute an
`inter partes review of claims 1, 4–10, and 13–18 of U.S. Patent No.
`8,017,150 B2 (Ex. 1001, “the ’150 patent”). Case IPR2016-00282
`(“IPR282”), Paper 1. Each petition was accorded a filing date of December
`4, 2015. IPR281, Paper 3; IPR282, Paper 3.
`By Order dated February 18, 2016, we authorized Petitioner to file a
`motion requesting the filing date accorded to each petition to be changed
`from December 4, 2015, to December 3, 2015. IPR281, Paper 8, 3; IPR282,
`Paper 7, 3. On February 29, 2016, Petitioner filed in each case a “Motion to
`Correct Filing Date”2 (collectively, “Motions”). IPR281, Paper 10 (“Mot.”);
`IPR282, Paper 9. As authorized, Patent Owner filed Oppositions to the
`Motions (IPR281, Paper 12 (“Opp.”); IPR282, Paper, 11), and Petitioner
`filed Replies to those Oppositions to the Motions (IPR281, Paper 14
`
`
`
`2 We note that it is undisputed that the petitions were each accorded a filing
`date that reflects the date that the petition filings, payment, and service,
`albeit defective, were completed. Thus, the issue is not simply whether to
`“correct” any error. Rather, the issue is whether Petitioner is entitled to the
`benefit of a filing date that is earlier than our regulations describe.
`Therefore, although Petitioner styled the Motions as requests to “Correct”
`the filing date accorded to the petitions, we treat them as requests to
`“Change” that date.
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`2
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`IPR2016-00281 (Patent 8,603,514 B2)
`IPR2016-00282 (Patent 8,017,150 B2)
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`(“Reply”); IPR282, Paper 13).3 Patent Owner subsequently filed a timely
`Preliminary Response in each case. IPR281, Paper 16; IPR282, Paper 15.
`II. MOTIONS TO CHANGE FILING DATES ACCORDED
`The parties agree that because Petitioner was served with a complaint
`on December 3, 2014, asserting infringement of the patents at issue, the
`statutory bar date for IPR281 and IPR282 is December 3, 2015. See 35
`U.S.C. § 315(b) (“An inter partes review may not be instituted if the petition
`requesting the proceeding is filed more than 1 year after the date on which
`the petitioner, real party in interest, or privy of the petitioner is served with a
`complaint alleging infringement of the patent.”); 37 C.F.R. § 42.101(b);
`Mot. 1–2, 6; Opp. 1. Petitioner acknowledges that the December 4, 2015
`filing date accorded to the petitions reflects the date that the Petitioner
`completed filing the petitions, including paying the fees and attempting
`service on the Patent Owner. Mot. 4–5.
`Nevertheless, Petitioner requests that we change the filing date
`accorded in each case from December 4, 2015, to December 3, 2015,
`because the petitions and exhibits were uploaded on December 3, 2015, and
`payment was attempted, but not completed on that date due to “technical
`issues.” Id. at 1. In support of its contentions, Petitioner relies upon the
`declarations of Ms. Eleanor Yost, an attorney at the law firm of Goodwin
`
`
`
`3 With respect to the Motions, Oppositions, and Replies, Petitioner and
`Patent Owner certify that “word-for-word identical” papers and declaratory
`exhibits were filed in IPR281 and IPR282, although the paper and exhibit
`numbers may differ. In the remaining portions of this Decision, we include
`citation only to paper and exhibit numbers in IPR281.
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`3
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`IPR2016-00281 (Patent 8,603,514 B2)
`IPR2016-00282 (Patent 8,017,150 B2)
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`Procter LLP, and Ms. Linda Rogers, a legal assistant supervised by Ms.
`Yost. Mot. 1–2; Ex. 1041 ¶ 1; Ex. 1042 ¶ 1. Patent Owner opposes
`Petitioner’s request and relies upon the declarations of Mr. Daniel Doran, the
`Docketing Manager for Hoffmann & Baron, LLP, and Mr. Michael I.
`Chakansky, a partner at that law firm. Opp. 2, n.3; Ex. 2006 ¶ 1; Ex, 2007
`¶ 1.
`
`PRPS filing
`Petitioner asserts that at approximately 9:45 p.m. EST on December 3,
`2015, Ms. Rogers logged into the Patent Review Processing System
`(“PRPS”) and began uploading documents for a petition in another case,
`Case IPR2015-00280 (“IPR280”). Mot. 2. The Motions explain that, based
`on their experience, Ms. Yost and Ms. Rogers believed that they would be
`able to complete the filings in that case, as well as start and complete the
`filings in IPR281 and IPR282, prior to midnight. Id.
`According to Petitioner, however, Ms. Rogers found that the PRPS
`system “repeatedly froze” during the upload process for IPR280. Id.
`Petitioner asserts that during the upload process, Ms. Rogers observed that
`the “spinning wheel” that normally appears during the upload process did so
`“for an unusual length of time (sometimes several minutes), and then
`eventually stop[ped] spinning, resulting in a ‘frozen’ screen that prevented
`her from taking any action (including closing the browser window or
`opening new windows).” Id. at 3. To remedy that issue, Ms. Rogers and
`Ms. Yost decided to “force-close the browser, re-open the browser, re-login
`to PRPS and attempt to resume the filing.” Id. Upon doing so, Petitioner
`asserts that Ms. Rogers was “met with a ‘padlock’ graphic and an error
`message,” requiring her to select a menu option to “unlock” the session and
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`IPR2016-00281 (Patent 8,603,514 B2)
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`begin uploading the documents again. Id. According to Petitioner, the
`alleged “‘freezing,’ re-starting, and unlocking process added a significant
`amount of time to the filing” process for IPR280. Id.
`Petitioner asserts that at approximately 11:00 p.m., Ms. Yost initiated
`“a separate, parallel PRPS session” on a different computer and began filing
`the petition in IPR281. Id. at 3–4. Petitioner asserts that she “experienced
`the same freezing errors in connection with several different documents
`(sometimes more than once for the same document).” Id. at 4. According to
`Petitioner, Ms. Rogers began filing the petition in IPR282 after completing
`the petition filing in IPR280 at approximately 11:11 p.m. Id.
`Petitioner asserts that the petitions and exhibits in both IPR281 and
`IPR282 were successfully uploaded to the PRPS server on December 3,
`2015. Id. Petitioner asserts that, prior to midnight, Ms. Yost and Ms.
`Rogers attempted to submit payments for those IPRs, but that the “PRPS
`system rejected the payments without explanation.” Id. at 4 (citing Ex. 1041
`¶¶ 27–29; Ex. 1042 ¶ 18; Exs. 1044–45, 1047–1051 (PRPS failed payment
`receipts)). According to Petitioner, at midnight, i.e., on December 4, 2015,
`payment was accepted for IPR281 and Ms. Yost clicked “submit” and
`received a filing notification at 12:01 a.m. Id. at 4–5. Petitioner asserts that
`the payment was accepted for IPR282 at 12:04 a.m., and after clicking
`“submit,” Ms. Rogers received a filing notification at 12:09 a.m. Id. at 5.
`Service
`Petitioner acknowledges that “[t]he petitions and supporting
`documents were tendered to FedEx® at 3:02 am on Friday, December 4,
`2015.” Mot. 5. Petitioner acknowledges also that “Ms. Yost neglected to
`appreciate that the Certificates of Service . . . still said December 3, and
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`needed to be updated to reflect that the documents were not tendered to
`FedEx® until December 4th.” Id. at 6. Petitioner asserts that there was a
`delay in printing hard-copy versions of the petitions and relevant documents
`for service because “[g]iven the slow upload times experienced by Ms.
`Rogers and Ms. Yost, Office Services was directed to exit all of the PDFs
`until the filings were complete, as a troubleshooting measure in the event
`that their accessing the PDFs was exacerbating the upload times.” Id. at 5.
`According to Petitioner, “[o]nce the filings were complete, printing
`resumed.” Id.
`Patent Owner asserts that Petitioner “made no effort to effect service”
`on December 3, 2015, but instead did not provide any service documents to
`FedEx® until 3:02 a.m. on December 4, 2015. Opp. 3–4. Additionally,
`Patent Owner asserts that Petitioner served an incomplete set of documents
`on December 4, 2015. Id. Specifically, Patent Owner asserts that for
`IPR281, Petitioner failed to include a copy of the declaration of Jayanth
`Panyam referenced in the petition (Ex. 1003), and for IPR282, Petitioner
`failed to include a copy of the petition itself and the declaration of Nandita
`Das referenced therein (Ex. 1003). Id. at 2. Further, Patent Owner asserts
`that Petitioner “misrepresented” in an ex parte email to the Board and in
`both the original and amended Certificates of Service that the documents
`were served on December 3, 2015. Id. at 4.
`In the Reply, Petitioner asserts that it subsequently provided to Patent
`Owner a copy of the IPR282 Petition, the Nandita Das declaration, and the
`Jayanth Panyam declaration, referring to those items as “allegedly missing
`documents.” Reply 3. Petitioner asserts that “to the extent the service copy
`was incomplete, it was due to clerical errors.” Id. With respect to Patent
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`IPR2016-00281 (Patent 8,603,514 B2)
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`Owner’s assertion that Petitioner misrepresented the date of service on the
`original and amended Certificates of Service, Petitioner responds that Ms.
`Yost only made corrections identified by the Board’s Trial Paralegal
`“because she believed that she needed the Board’s authorization to make
`changes to the record other than those requested by the Board, and a panel
`had not been appointed from which she could seek authorization.” Id. at 4
`(citing Ex. 1041 ¶ 41).
`Relief Requested
`According to Petitioner, it has satisfied the statutory requirements for
`consideration of petitions for inter partes review by, at some point, paying
`the required fee and providing copies of the petitions and supporting
`evidence to Patent Owner. Mot. 7. Acknowledging that the timing of both
`of those requirements, set forth by regulation, were not met, Petitioner
`requests the Board to exercise its discretion to waive the regulatory
`requirements for electronic filing and change the filing date accorded to the
`petitions to December 3, 2015. Id. at 1, 8 (citing 37 C.F.R. § 42.5(b) (“The
`Board may waive or suspend a requirement of parts 1, 41, and 42 . . . .”)).
`Petitioner cites a number of cases that allegedly support its assertion that the
`Board should exercise its discretion to waive the regulatory requirements for
`electronic filing. Mot. 8–10. According to Petitioner, we should waive
`those requirements for the petitions in IPR281 and IPR282 because “[b]ut
`for the compromised PRPS system that unexpectedly delayed them, the
`filings would have been completed prior to midnight on December 3.” Id. at
`10. Further, Petitioner asserts that Teva will be greatly prejudiced if the
`filing dates are not changed, “as its petition would be barred under 35 U.S.C.
`§ 315(b).” Id. at 6.
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`7
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`IPR2016-00281 (Patent 8,603,514 B2)
`IPR2016-00282 (Patent 8,017,150 B2)
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`Patent Owner asserts that changing the filing date accorded to the
`petitions would prejudice Patent Owner because “[l]osing the benefit of the
`one year statutory bar of 35 U.S.C. § 315(b) will result in [Patent Owner]
`having to expend significant amounts of time and money to defend the two
`patents of the 281 [and] 282 IPRs.” Opp. 6. Patent Owner asserts further
`that the cases cited by Petitioner in support of its request to change the filing
`date accorded to the petitions are distinguishable from the present situation
`“because none of them addressed the combination of a failure to file, serve
`and pay the required fee as set out in our Rules and governing statute.” Id.
`at 7 (quoting Terremark N. Am. LLC v. Joao Control & Monitoring Sys.,
`LLC, Case IPR2015-01482, slip op. at 10 (PTAB Dec. 28, 2015) (Paper
`10)). According to Patent Owner, in each case cited by Petitioner, “service
`on patent owner’s counsel was accomplished or attempted before the
`statutory bar.” Id. at 7–8. Additionally, Patent Owner asserts that Petitioner
`has not established that it is entitled to a December 3, 2015 filing date
`because Petitioner has (a) admitted to failing to file the petitions on that date,
`(b) repeatedly misrepresented the date that it served the papers on Patent
`Owner, and (c) offered only an unsupported reason for its delay in filing the
`“last minute” petitions. Id. at 3, 8–10.
`Analysis
`The patent statute sets forth requirements that must be satisfied for an
`inter partes review petition to be considered, such as inclusion of certain
`documents, payment of fees, and providing copies of documents to the
`designated representative of the patent owner. 35 U.S.C. § 312(a). The
`applicable regulations clarify that a petition will not be accorded a filing date
`until the petition satisfies the following: (1) the content of the petition
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`IPR2016-00281 (Patent 8,603,514 B2)
`IPR2016-00282 (Patent 8,017,150 B2)
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`complies with 37 C.F.R. § 42.104, (2) the fee to institute has been paid, see
`37 C.F.R. §§ 42.15(a), 42.103(b), and (3) the petition and relevant
`documents have been served on the patent owner. 37 C.F.R. § 42.106(a).
`As discussed supra, Petitioner acknowledges that the petitions in
`IPR281 and IPR282 did not satisfy the latter two requirements by the filing
`date that it now requests. Petitioner, however, asserts that we should
`exercise our discretion to waive those regulatory requirements because
`technical difficulties caused by PRPS prevented Petitioner from satisfying
`those requirements on December 3, 2015. As the moving party, Petitioner
`has the burden of proof to establish that it is entitled to the requested relief.
`See 37 C.F.R. § 42.20(c).
`Having considered the arguments and evidence, we agree with Patent
`Owner that Petitioner has not established that it is entitled to a waiver of the
`regulatory requirements for according a filing date to a petition. In
`particular, we do not find that Petitioner has established persuasively that a
`“compromised PRPS system” caused Petitioner’s delay in uploading the
`petition documents, or prevented Petitioner from paying the petition fees,
`and serving Patent Owner with the petitions on December 3, 2015. See Mot.
`10. Rather, based upon our review, Petitioner has not shown that such
`delays are attributable to the system rather than to the users.
`As an initial matter, we note that, by their own admission, Petitioner’s
`counsel, Ms. Yost, and her legal assistant, Ms. Rogers, began to serially
`upload the first of three petitions and corresponding exhibits at
`approximately 9:45 p.m. on the critical date for those petitions to be filed.
`Ex. 1041 ¶ 5; Ex. 1042 ¶ 4. Petitioner does not, however, persuasively
`explain why it waited to upload and file, serially, three petitions and
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`IPR2016-00281 (Patent 8,603,514 B2)
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`numerous exhibits (based on our calculation, the three petitions and
`accompanying exhibits total approximately 12,000 pages and nearly 500
`MB) with little more than two hours remaining before the statutory bar date.
`Ms. Yost and Ms. Rogers both attest that, “[i]n [their] experience, a
`complete filing with a similar number of exhibits to that of the ’280 and ’281
`petitions typically takes 20 minutes or less each.” Ex. 1041 ¶ 24; Ex. 1042
`¶ 13. Even if 20 minutes were typical for filing a petition, that would only
`leave about an hour before the bar date to complete all three filings. Waiting
`until the last minute—without explanation—is ill advised and had Petitioner
`not done so, any alleged delays caused by “technical issues” would have
`been moot.
`In any event, according to Ms. Yost and Ms. Rogers, they experienced
`technical issues while using PRPS, including the system “crashing,” and
`“freezing” inexplicably. Ex. 1041 ¶¶ 4, 8, 15, 19, 22, 25; Ex. 1042 ¶¶ 13,
`11, 14. Neither Petitioner nor its declarants, however, have provided any
`objective evidence to support that testimony. In particular, Petitioner has not
`provided any objective evidence that technical issues occurred with the
`PRPS system during the evening of December 3, 2015. Nor are we aware of
`any technical issues during that time. Moreover, Petitioner has not
`established persuasively that any delays or issues it allegedly experienced
`were not the result of processes unrelated to PRPS.
`Ms. Yost and Ms. Rogers declare that they received an “error
`message,” but neither declarant described that message or provided a
`screenshot of such message. Ex. 1041 ¶ 13; Ex. 1042 ¶ 9.
`Further, with respect to the December 4, 2015 fee payments, we
`remain unpersuaded that a PRPS error was the cause. Contrary to the
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`assertion of Petitioner and the declaration testimony of Ms. Yost and Ms.
`Rogers, the payment history in PRPS reveals that their initial payment
`attempts were not rejected “without explanation.” See Mot. 4. That
`payment history, for each petition, was immediately available to the PRPS
`users during the payment process when viewing the “Payment” tab. The
`payment history provides information relating to each attempted payment,
`including the credit card or deposit account applied, the transaction date, the
`status as “Fail” or “Cleared,” and the reason for any failed payment. For
`example, in IPR281, the payment history identifies an initial attempt to pay
`the petition fee on December 3, 2015, using a credit card. That payment
`attempt has a “Fail” status and an explanation that “[y]our transaction
`exceeds the maximum daily limit for credit card transactions. The
`transaction will not be processed.” On December 4, 2015, a payment was
`made using a different credit card, and the status for that approved payment
`was noted as “Cleared.”
`Similarly, in IPR282, the payment history indicates two attempts to
`pay using a deposit account wherein each attempt resulted in a “Fail” status
`with an explanation that the “Deposit Account has insufficient funds to
`complete the sale.” The payment history indicates also that two subsequent
`attempts to pay using a credit card each resulted in a “Fail” status with an
`explanation that the “[c]ard account number is invalid.” A payment was
`eventually approved after another deposit account having sufficient funds
`was applied on December 4, 2015. Thus, we remain unpersuaded by the
`declaration testimony of Ms. Yost and Ms. Rogers that their payment
`attempts were rejected “without explanation” or that any “technical issues”
`attributable to PRPS delayed the successful fee payments for IPR281 and
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`IPR282. See Mot. 1, 4–5.
`Additionally, Petitioner has not provided a reasonable explanation for
`failing to timely serve Patent Owner. See Mot. 5–6, 10; Reply 4. As
`discussed, we do not find that Petitioner established that PRPS was not
`functioning properly on December 3, 2015. Nor has Petitioner provided any
`other persuasive argument or evidence that it even attempted to serve the
`petitions on December 3, 2015. Moreover, we are troubled by the fact that
`Petitioner did not acknowledge that both the original and amended
`certificates in both cases recorded the wrong date of service until after Patent
`Owner raised the issue. Further, Petitioner’s failure to acknowledge that
`error when amending the certificates of service, or in any of its e-mail
`communications to the Board requesting to change the filing date accorded
`is not well taken.4
`With respect to the cases cited by Petitioner to support its request that
`we waive the regulatory requirements to pay petition fees and serve the
`petition on the Patent Owner prior to according filing dates, we remain
`unpersuaded. We begin by noting that those cited cases are non-precedential
`and reflect the Board’s exercise of discretion based on the particular facts
`presented therein. Further, as Patent Owner has argued, each of those cited
`cases are distinguishable from the circumstances present here because none
`of the cited cases address the combination of a failure to complete filing,
`including paying fees, along with a failure to timely serve the petition. See
`
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`4 We note also, that Petitioner has at no time sought to correct its
`certification in the petitions regarding grounds for standing under 37 C.F.R.
`§ 42.104(a) or its statement that the petitions were “timely filed on
`December 3, 2015.” IPR281, Paper 1, 8; IPR282, Paper 1, 4.
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`Opp. 7–8; see also Terremark N. Am. LLC, Case IPR2015-01482, slip op. at
`10–13 (Paper 10) (distinguishing a number of cases cited by Petitioner as not
`including the combination of deficiencies regarding requirements to have a
`filing date accorded, including petition filing, payment, and service).
`Moreover, here, as discussed supra, Petitioner has failed to establish
`persuasively that PRPS functioned improperly during the time that Petitioner
`endeavored to file the petitions.
`Thus, considering the totality of circumstances present in these cases,
`we determine that Petitioner has not met its burden of establishing that it is
`entitled to have the filing dates accorded to the petitions in IPR281 and
`IPR282 changed. That determination is unchanged by Petitioner’s assertion
`that it will be prejudiced if the filings dates accorded remain December 4,
`2015, because the petitions will be time-barred. Mot. 6. Any prejudice to
`Petitioner was created by Petitioner’s own delay. Accordingly, Petitioner’s
`Motions are denied.
`III. STATUTORY BAR TO INTER PARTES REVIEW
`Whether Petitioner is barred from pursuing an inter partes review
`under 35 U.S.C. § 315(b) is a threshold issue. 35 U.S.C. § 315(b) provides:
`An inter partes review may not be instituted if the petition
`requesting the proceeding is filed more than 1 year after the date
`on which the petitioner, real party in interest, or privy of the
`petitioner is served with a complaint alleging infringement of the
`patent.
`
`As discussed in Section I supra, the parties agree that because
`Petitioner was served with complaints asserting the patents at issue on
`December 3, 2014, and that the statutory bar date for IPR281 and IPR282 is
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`December 3, 2015.5 Mot. 1–2, 6; Opp. 1. The petitions in IPR281 and
`IPR282 each were accorded a filing date of December 4, 2015, one day after
`the statutory bar date. Paper 3, 1. We have declined to change that date.
`As Petitioner acknowledges, if the filing dates accorded to the petitions are
`not changed, each “petition would be barred under 35 U.S.C. § 315(b).”
`Mot. 6. Accordingly, the petitions are barred under 35 U.S.C. § 315(b).
`
`
`ORDER
`In consideration of the foregoing, it is hereby:
`ORDERED that Petitioner’s Motions are denied;
`FURTHER ORDERED that institution of an inter partes review of
`any challenged claim of the ’514 patent in IPR281 is denied; and
`FURTHER ORDERED that institution of an inter partes review of
`any challenged claim of the ’150 patent in IPR282 is denied.
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`5 Petitioner explains that the complaints were served in Reckitt Benckiser
`Pharmaceuticals, Inc., RB Pharmaceuticals Limited, et al v. Teva
`Pharmaceuticals USA, Inc., Civil Action 14-1451 (D. Del.). IPR281, Paper
`1, 8; IPR282, Paper 1, 4. The real parties-in-interest for Patent Owner in
`IPR281 and IPR282 are identified as MonoSol Rx, LLC, and the exclusive
`licensee of the patents at issue, Indivior Inc., formerly known as Reckitt
`Benckiser Pharmaceuticals Inc. IPR281, Paper 7, 1; IPR282, Paper 6, 1.
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`IPR2016-00281 (Patent 8,603,514 B2)
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`COUNSEL FOR PETITIONER:
`Elizabeth Holland
`Eleanor M. Yost
`John Stull
`Jennifer Albert
`eholland@goodwinprocter.com
`eyost@goodwinprocter.com
`jstull@goodwinprocter.com
`jalbert@goodwinprocter.com
`
`
`
`COUNSEL FOR PATENT OWNER:
`Daniel Scola
`Michael Chakansky
`dscola@hbiplaw.com
`mchakansky@hbiplaw.com
`
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