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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`MYLAN PHARMACEUTICALS, INC., TEVA )
`PHARMACEUTICALS USA, INC., AND )
`AKORN, INC., )
` )
` Petitioners, )
` ) Thursday,
`v. ) December 13, 2018
` )
`ALLERGAN, INC., )
` )
` )
` Patent Owner, )
`__________________________________)
`
` Case IPR2016-01127 (US 8,685,930 B2)
` Case IPR2016-01128 (US 8,629,111 B2)
` Case IPR2016-01129 (US 8,642,556 B2)
` Case IPR2016-01130 (US 8,633,162 B2)
` Case IPR2016-01131 (US 8,648,048 B2)
` Case IPR2016-01132 (US 9,248,191 B2)
` TRANSCRIPTS OF TELEPHONIC PROCEEDINGS BEFORE
` ADMINISTRATIVE PATENT JUDGES
` CHRISTOPHER PAULRAJ, SHERIDAN SNEDDEN and TINA HULSE
`
`Job No: 152671
`REPORTED BY: AMANDA M. LeGORE
` RDR, CRR, CRC, FCRR, CA-CSR 14290
` Job No. 152671
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`MYLAN - EXHIBIT 1174
`Mylan Pharmaceuticals Inc. et al. v. Allergan, Inc.
`IPR2016-01127, -01128, -01129, -01130, -01131, & -01132
`
`
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`MYLAN PHARMACEUTICALS, INC., TEVA )
`PHARMACEUTICALS USA, INC., AND )
`AKORN, INC., )
` )
` Petitioners, )
` ) Thursday,
`v. ) December 13, 2018
` )
`ALLERGAN, INC., )
` )
` )
` Patent Owner, )
`__________________________________)
`
` Case IPR2016-01127 (US 8,685,930 B2)
` Case IPR2016-01128 (US 8,629,111 B2)
` Case IPR2016-01129 (US 8,642,556 B2)
` Case IPR2016-01130 (US 8,633,162 B2)
` Case IPR2016-01131 (US 8,648,048 B2)
` Case IPR2016-01132 (US 9,248,191 B2)
` TRANSCRIPTS OF TELEPHONIC PROCEEDINGS BEFORE
` ADMINISTRATIVE PATENT JUDGES
` CHRISTOPHER PAULRAJ, SHERIDAN SNEDDEN and TINA HULSE
`
`Job No: 152671
`REPORTED BY: AMANDA M. LeGORE
` RDR, CRR, CRC, FCRR, CA-CSR 14290
` Job No. 152671
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`MYLAN - EXHIBIT 1174
`Mylan Pharmaceuticals Inc. et al. v. Allergan, Inc.
`IPR2016-01127, -01128, -01129, -01130, -01131, & -01132
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` December 13, 2018
` 3:01 p.m.
`
` Transcript of telephonic proceedings held
`before the Administrative Patent Judges CHRISTOPHER
`PAULRAJ, SHERIDAN SNEDDEN and TINA HULSE. Reported by
`AMANDA LeGORE, Registered Diplomate Reporter,
`Certified Realtime Reporter, Certified Shorthand
`Reporter-CA (No. 14290).
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`TELEPHONIC APPEARANCES:
`
` Attorneys for Petitioner Mylan
`Pharmaceuticals:
` WILSON SONSINI GOODRICH & ROSATI
` 1700 K Street NW
` Washington, DC 20006
` BY: RICHARD TORCZON, ESQ.
` STEVE PARMELEE, ESQ.
` JAD MILLS, ESQ.
`
` -and-
`
` PERKINS COIE
` 700 Thirteenth Street NW
` Washington, DC 20005.
` BY: BRANDON WHITE, ESQ.
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`TELEPHONIC APPEARANCES (Cont'd):
`
` Attorneys for Petitioner Akorn, Inc.:
` Sughrue Mion, PLLC
` 2100 Pennsylvania Avenue, NW #800
` Washington, DC 20037
` BY: MICHAEL DZWONCZYK, ESQ.
`
` Attorneys for Allergan Patent Owner:
` FISH RICHARDSON
` 3200 RBC Plaza.
` 60 South Sixth Street
` Minneapolis, Minnesota 55402.
` BY: MICHAEL KANE, ESQ.
` DOROTHY WHELAN, ESQ.
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`TELEPHONIC APPEARANCES (Cont'd):
` Attorneys for Saint Regis Mohawk Tribe
` Patent Owners:
` SHORE CHAN DEPUMPO
` 901 Main Street
` Dallas, Texas 75202
` BY: MARSHA SCHMIDT, ESQ.
` CHRIS EVANS, ESQ.
`
`ADMINISTRATIVE PATENT JUDGES:
` CHRISTOPHER PAULRAJ
` SHERIDAN SNEDDEN
` TINA HULSE
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` JUDGE PAULRAJ: Good afternoon. This is
`Judge Paulraj. And with me on the line I have Judge
`Snedden and Hulse.
` This is a conference call in IPR
`2016-01127, -1128, -1129, -1130, -1131, and -1132.
`And we have other cases joined to each of these
`proceedings as well.
` So I understand there is a court reporter
`on the line. So, with that, we'll proceed.
` Let's start with roll call with
`petitioner's counsel first. And then we'll follow up
`with patent owner's counsel.
` Perhaps I could be more specific. Let's
`start with Mylan's counsel first. They're the
`primary petitioner in the proceeding.
` MR. TORCZON: Oh, I'm sorry, your Honor.
`This is Richard Torczon for Mylan. And I also have
`with me on the line, Steve Parmelee, Jad Mills, and
`Brandon White for Mylan.
` And as you've heard, we have the court
`reporter on the line, and we're -- we plan to submit
`a transcript promptly.
` JUDGE PAULRAJ: All right. Thank you,
`Mr. Torczon.
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` Do we have any of -- other petitioner's
`counsel on the line as well?
` MR. DZWONCZYK: This is Mike Dzwonczyk,
`counsel for Akorn.
` JUDGE PAULRAJ: Thank you, Mr. Dzwonczyk.
` Anyone from Teva?
` Do we have any other petitioner counsels on
`the line?
` MS. SCHMIDT: This is Marsha Schmidt. I
`represent Saint Regis Mohawk Tribe.
` JUDGE PAULRAJ: All right. Ms. Schmidt,
`that's the patent owner's counsel. But I just wanted
`to at least get petitioner's counsel's appearance on
`before we turn it over to the patent owners.
` MS. SCHMIDT: Sorry.
` JUDGE PAULRAJ: All right. Having heard
`nothing else, we'll turn it over to patent owner's
`counsel.
` So I know we have patent owners Saint
`Regence Mohawk Tribe, as well as Allergan perhaps on
`the line as well.
` So let's start with the Tribe's counsel and
`Allergan's counsel.
` MR. EVANS: Your Honor, Christopher Evans
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`from Shore Chan Depumpo, representing the Saint Regis
`Mohawk Tribe. And my colleague, Marsha Schmidt, is
`also on the line.
` JUDGE PAULRAJ: All right. Thank you,
`Mr. Evans.
` Anyone from Allergan?
` MS. WHELAN: Yes, your Honor. This is
`Dorothy Whelan. I'm up here on behalf of Allergan,
`and I'm joined by Michael Kane.
` JUDGE PAULRAJ: All right. Thank you,
`Ms. Whelan.
` So just so we can kind of keep it straight,
`for petitioners, I'm assuming that Mr. Torczon or
`someone from Mylan will be primarily speaking? Am I
`correct there?
` MR. TORCZON: You're correct, your Honor.
` JUDGE PAULRAJ: And for patent owner's
`side, who will be speaking for the patent owner's
`side on this call?
` MR. EVANS: Your Honor, this is Chris
`Evans. I'll be addressing the stay pending the cert
`petition, and someone from Fish & Richardson will be
`addressing the stay pending the mandate in the merits
`petition.
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` JUDGE PAULRAJ: All right. Very well.
` So, with that, the purpose of this call is
`somewhat twofold, as Mr. Evans hinted at, which is to
`address both the stay request pending the Supreme
`Court cert petition in the appeal from the Federal
`Circuit sovereign immunity decision, as well as the
`stay pending the mandate in the appeal from the
`district court proceeding. So let's take those one
`at a time.
` Mr. Evans, can you briefly state your
`position and what you would like us to do at this
`point.
` MR. EVANS: Sure.
` So the Tribe and Allergan are jointly
`requesting permission to either file a motion to stay
`these proceedings pending the forthcoming petition
`for writ of certiorari that they plan to file with
`the Supreme Court and/or have the Board rule on this
`call.
` The basis for that request is under
`standard operating procedure 9 in remand proceedings,
`the primary issue for determine -- determining
`whether to stay a proceeding pending a writ for
`certiorari is whether the Supreme Court's judgment
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`would impact the Board's decision on remand. That
`standard operating procedure cites to a case -- or an
`IPR No. 2013-00132, which is Shaw Industry Group v.
`Automated Creel Systems, Inc., paper No. 60. And
`that issued in October 14, 2016.
` And in that case the Board decided to stay
`the proceedings pending petition for certiorari. And
`their reasoning was that the decision by the Supreme
`Court potentially could impact our assessment of the
`remanded issue. Thus, for reasons of efficiency and
`to avoid the possibly of unnecessary acts or
`inconsistent results, we are persuaded that no
`further action should be taken in this proceeding
`pending -- pending the Supreme Court's decision.
` We think that same logic applies here.
`There's good cause here to stay these proceedings
`because the Supreme Court's judgment in our pending
`petition for writ would impact the Board's decision.
` In the Federal Circuit appeal, the Federal
`Circuit held that sovereign immunity cannot be
`asserted in an IPR because of their belief that an
`IPR is more like an agency enforcement action than a
`civil suit brought by a private party. We think that
`was wrongly decided.
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` So our question for the Supreme Court will
`be whether sovereign immunity may be asserted in an
`inter partes review. And if the Supreme Court takes
`up that issue and reverses the Federal Circuit, that
`will require that these proceedings be terminated
`because the board would no longer have jurisdiction
`over the Tribe. So I don't think there's any doubt
`that the Supreme Court's judgment would impact these
`proceedings.
` In addition, sovereign immunity is not a
`liability defense. It's an immunity from suit. So
`it effectively would be lost if these proceedings
`were erroneously permitted to go to trial.
` JUDGE PAULRAJ: Mr. Evans, I'm going to cut
`you off right there. I think we've heard a lot about
`sovereign -- the merits of your sovereign immunity
`argument. I think the focus here is whether we
`should stay pending the cert petition and --
` MR. EVANS: Sure.
` JUDGE PAULRAJ: -- I got the gist of your
`argument as to that.
` Let me ask you this, though. Let me --
`when do you expect to file a cert petition from that
`appeal?
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` MR. EVANS: Our goal is to file it next
`week. I don't -- I think we're on track to meet that
`goal.
` Our absolute drop-dead deadline is January
`20th, but we expect to file it far in advance of
`that. And I think, on average, the Supreme Court
`acts on petitions for writ of certiorari in about six
`weeks. So I think it's not unreasonable to think
`that we'll have an answer on this issue by
`approximately mid-February.
` JUDGE PAULRAJ: Very well.
` And we are aware of other parallel
`proceedings in which the Tribe has asserted sovereign
`immunity, and we're also aware that you have sought
`to stay those proceedings.
` So are the arguments that you've raised
`here as far as stay essentially the same as the
`briefing that's been filed in the other proceedings?
` MR. EVANS: Essentially the same. I mean,
`the one -- the one caveat here is that standard
`operating procedure 9 would apply here since this is
`a remanded case. And in that one it says the issue
`to determine whether to stay the proceedings is
`whether the Supreme Court's judgment would impact the
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`board's decision. So that's just -- that's an
`additional basis beyond what was asserted in those
`other proceedings.
` JUDGE PAULRAJ: All right. And -- and my
`question, then, is the Federal Circuit's decision on
`the sovereign immunity issue, was that a remand, to
`your understanding? Because that's not what I saw,
`at least as -- as far as the disposition in that
`appeal.
` MR. EVANS: You mean whether they remanded
`back?
` JUDGE PAULRAJ: Yeah, because it seemed
`like an averment.
` MR. EVANS: You're correct. You're correct
`on the -- on the procedure there.
` JUDGE PAULRAJ: All right. So with that
`understanding, why would SOP 9 apply under the
`circumstances?
` MR. EVANS: I guess my understanding was
`any time you get it -- you come back down from the
`Federal Circuit, it's a remand.
` JUDGE PAULRAJ: Very well. Okay. So
`that's -- so your position is that SOP 9 applies,
`despite the fact that it was an averment of our prior
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`decision on the sovereign immunity issue?
` MR. EVANS: Well, I think -- you know,
`setting aside the -- whether it's a remand or not, I
`think the whole purpose of SOP 9 is to give the Board
`guidance on what to do when they get a mandate back
`from the Federal Circuit.
` So I don't -- you know, whether or not
`it -- I don't think it's binding in -- you know,
`standard operating procedures are not binding orders
`anyway. But I think the guidance it provides for
`remand would apply equally in this case, where
`this -- you know, there's not very many interlocutory
`appeals that happen or come back in cases like these.
`So this is somewhat of an unusual outlier case
`anyway.
` But I believe the guidance it provides
`applies equally here. And I think the statement
`that -- whether or not to stay proceedings pending
`writ for certiorari, depending on whether the Supreme
`Court's judgment would impact the Board's decision
`should apply with equal weight.
` The reason why it applies there applies
`equally here.
` JUDGE PAULRAJ: All right. And then let me
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`ask you one other thing.
` The Federal Circuit -- we are also aware
`that the Federal Circuit denied the motion to stay
`the mandate. And -- and the argument that you made
`for staying the mandate seemed very similar to the
`argument that you're trying to make here. That --
`that it's an important enough issue that the Supreme
`Court is likely to grant cert. You know, the Federal
`Circuit denied that motion to stay the mandate.
` And can you give me a reason as to why we
`should differ from the Federal Circuit's conclusions
`in that respect?
` MR. EVANS: Yes. So the -- the standards
`for granting a stay of the mandate at the Federal
`Circuit is governed by Federal Rule of Civil
`Procedure 42, which has both the likelihood that the
`Supreme Court will grant the cert petition as well as
`the good cause standard, whereas here the only issue
`is whether there's good cause for the stay.
` And, also, the Federal Circuit's work is
`done. Whether or not the Supreme Court reverses them
`doesn't matter at this point. Whereas if the Board
`goes forward, has a trial, and issues a final order
`in this case; and then the Supreme Court were to
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`grant cert and reverse the Federal Circuit's finding,
`all of that work would have been for naught and would
`be undone by the Supreme Court's decisions. But
`there's an additional judicial efficiency here that
`simply isn't present for the -- for the Federal
`Circuit
` JUDGE PAULRAJ: Thank you, Counsel.
` Unless there's anything other -- any other
`argument you want to make specific to why we should
`stay pending the Supreme Court's cert petition, I'll
`turn it over to petitioner's counsel.
` MR. EVANS: Just the importance of
`sovereign immunity to the Tribe cannot be emphasized
`enough. Nothing is lost by staying these
`proceedings, but potentially irreparable harm is done
`to the Tribe if we do not.
` JUDGE PAULRAJ: All right. I got that
`point. Thank you, Counsel.
` Mr. Torczon, I'll turn it over to you.
` MR. TORCZON: Thank you, your Honor.
` I'm going to tip my hand a little bit. I
`have been expecting to handle these -- these two
`questions together and while we have -- Mylan's
`consistently opposed stays in these proceedings, we
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`think that -- that the summary averments in the civil
`action does represent a changed circumstance. And
`when we talk about that issue, I -- I'm happy to
`propose a sort of compromised position that might
`moot out the -- some of the issues surrounding this
`particular issue.
` I would like to say that we are not
`interested in any open-ended stays, and we also don't
`think that the certiorari petition is a legitimate
`basis for a stay.
` I think it's significant that the Federal
`Circuit's already looked at precisely this issue, and
`it's decided it the other way. So I -- I don't think
`that it's even really appropriate for them to be
`asking for this relief here.
` Secondly, they have the -- the remedy of
`going to the Supreme Court itself, which is in a much
`better position to decide whether a stay is warranted
`in this sort of case.
` I think your Honor's absolutely right that
`SOP 9 is -- is pretty distinguishable. It is replete
`with references to a final written decision. There
`is no final written decision in this case, and so
`they're basically asking for an open-ended stay for a
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`very, very hypothetical speculative reason.
` They have suggested a very aggressive
`deadline -- set of deadlines for all of this getting
`resolved. I would note that both of the periods
`they're talking about are contingent on other actors,
`so they get to decide when they file their petition
`for certiorari at any point out to the 21st of
`January. And even if the Supreme Court picks the
`case up immediately, it can relist the case
`indefinitely. So -- so we don't think that, either
`for practical reasons or legal reasons, a stay on
`this ground is appropriate.
` If -- if I may -- I realize we did not get
`back to the Tribe with a position on the other stay,
`in part because we were struggling to come up with a
`position on it.
` We've sort of finally gelled on a position,
`which is, again, we don't like the idea of open-ended
`stays. And to the extent that they could continue
`asking for extensions of time, or something like
`that, we're not really interested in that. But
`we've -- we do think that getting a mandate in that
`case could bring some clarity to some of the issues.
`And, in that sense, I think we would be willing to
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`agree to a stay for that issue, which would at least
`go some of the way toward addressing the Tribe's
`concerns on its certiorari petition.
` I think the one caveat there is we would
`like to see the Board set a date certain for that, so
`that we have some sort of defined end point that we
`can plan around. So if the Board would set some date
`in January, which would give the Court plenty of time
`to -- to act on any requests for rehearing that the
`Tribe might pursue but at the same time would, you
`know, eliminate any incentives to further drag out
`the clock and, again, allow us -- and the Board for
`that matter -- a date to plan around, I think that's
`something that -- that Mylan would be willing to
`agree to. And, as I said, that would eat up a
`significant chunk of the time that would go toward
`the certiorari stay as well.
` JUDGE PAULRAJ: All right. So let me ask
`you, Mr. Torczon -- I mean, so this does appear to be
`news that perhaps the Tribe's hearing for the first
`time. So I do want to get some clarification.
` So what were you thinking in terms of a
`date certain that you would want a stay until?
` MR. TORCZON: Well, it -- all -- all along
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`we've been worried about this case dragging out.
`So -- so, you know, we understand that the Federal
`Circuit would need some time to act.
` My understanding is that their request for
`rehearing would be due sometime next week. And so if
`we extrapolate out from that, giving the Court up to
`a month to act on the request for rehearing, we're
`pretty confident we'll get denied. But even assuming
`it takes them a month to act on that, that would put
`us somewhere in late January. And I think we would
`be comfortable putting it off that long.
` In particular, we note the Microsoft case
`that the Tribe has cited to the Board. We understand
`that nobody really wants to see a lot of unnecessary
`briefing over the holiday periods. So we're
`willing -- we're willing to kick the can down the
`road a certain extent. We just don't want it to be
`open-ended.
` JUDGE PAULRAJ: Okay. So you expect the
`mandate to issue sometime in late January.
` And your position, it certainly seems like
`the -- the Federal Circuit is going to deny the
`mandate -- or deny any rehearing and request an issue
`of the mandate shortly thereafter.
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` So, frankly, what's the clarity that you
`expect to get if there is no further decision or, you
`know, the Federal Circuit doesn't do anything other
`than the Rule 36 averment in that appeal?
` MR. TORCZON: Well, to be honest, we don't
`think the mandate is actually legally necessary to
`resolve any issue, but we also understand that the
`Tribe disagrees with that position. And so just to
`take one more issue for decision off the table.
` Again, if we had to proceed now, that's
`something we would be prepared to do, but we're also
`prepared to wait a little while just to get that
`clarity; just to remove that issue. We're just not
`prepared to wait an indefinite amount of time.
` JUDGE PAULRAJ: Right. And I understand.
`We obviously have our hearing scheduled January 11th.
`So I am cognizant that that is not a lot -- put your
`team and counsel on both sides working over the
`holidays.
` Is that a concern that seems to be at play
`here?
` MR. TORCZON: Well, I wouldn't put it quite
`that way. What I would say is what I would be
`worried about is the mandate popping out unexpectedly
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`at some point, and all of a sudden who knows where we
`are in the process and everybody's scrambling.
`That's why, again, having a date certain would be
`helpful.
` I will note in the Microsoft case -- again,
`procedurally a very different case because -- because
`they were all pre-institutional. And the Board -- in
`fact, they were pre-preliminary response. So the
`Board has a lot of latitude to reach that phase.
`But, nevertheless, I think it's significant that
`rather than giving an open-ended stay, the Board
`simply reset the preliminary response date. And so
`we're kind of looking for something along those
`lines, where -- where we're happy to give them some
`time to resolve some of these issues. We just don't
`want it to be a blank check.
` JUDGE PAULRAJ: All right. Let me have the
`patent owner's counsel respond to what they may have
`just heard for the first time.
` And I understand Allergan's going to
`address the issue about the stay pending the Federal
`Circuit mandate. So let me turn it over to the
`patent owner.
` MR. EVANS: Your Honor, first-off, in the
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`Microsoft case, the Board has not yet ruled on the
`stay pending cert. It extended the deadlines for our
`preliminary response to mid-January based on the
`holidays and the fact that we had co-pending claim
`construction briefing going on for much of the time
`when our -- after the IPRs were filed. So that has
`not yet been ruled on in that case. We're not
`opposed to a date-certain deadline.
` I would propose a March 1st date with -- so
`a stay until then, with a schedule to have either
`another conference call to determine what the conduct
`of the proceedings should be at that point, depending
`on what the state (indiscernible) is.
` JUDGE PAULRAJ: Okay. So I assume that was
`Mr. Evans. I know, Mr. Evans, you briefly -- you
`said, when you started off on the call, that counsel
`from Fish & Richardson were going to address the
`issue about the stay pending the mandate. So at
`least I'll give that counsel an opportunity to speak
`about what they heard from Mr. Torczon.
` MR. KANE: Thank you, your Honor. This is
`Michael Kane from Fish & Richardson, representing
`Allergan.
` And we appreciate the -- the position from
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`Mr. Torczon. That is the first time we have heard
`that. And we do think it's quite consistent with our
`views.
` The petition for rehearing, as Mr. Torczon
`indicated, is due next Friday, a week from Friday,
`December 21. And, you know, as -- as I think the
`Court -- or the Board is recognizing and Mr. Torczon
`recognizes, the Federal Circuit opinion is not final
`until that mandate issues after the Federal Circuit
`has resolved the petition for rehearing.
` We do believe that there are some
`legitimate legal issues that will be raised that,
`depending upon what the Federal Circuit does, will
`either -- or potentially could narrow the issues for
`the Board or put a finer point on some of the issues
`that the Board might have to resolve at some point in
`time. So we -- we wholeheartedly agree with putting
`off until that process completes itself.
` We -- you know, typically, I would think
`the Federal Circuit would rule within -- probably
`within the timeframes that we're talking about, four
`to six weeks, or thereabouts. But as the -- the
`Board has recognized, we are into the holidays. So
`given the procedures internally at the court, that
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`process could be potentially delayed a bit.
` So I do think that -- well, either --
`whatever date that we set -- and I think March 1, as
`Mr. Evans said, would certainly be appropriate and
`almost certainly have some resolution, one way or the
`other, at the Federal Circuit would work. If not,
`and the Federal Circuit has not resolved the issue,
`we could certainly report back to the Board at some
`date certain and provide any update.
` The only other point that I guess I would
`make, just to -- so that the Board is aware, that
`given the status of these patents following in the
`district court action, the patents are not preventing
`petitioners from obtaining, you know, FDA approval
`and launching their proposed generic product at this
`point. So, in our view, there's -- there's little or
`no prejudice to defendants to wait for what would be
`a relatively short period of time to get some clarity
`and -- and finality from the Federal Circuit.
` JUDGE PAULRAJ: All right. Very well,
`Mr. Kane.
` So I guess I'm trying to get my head around
`this as well.
` So do you think that -- do you expect the
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`federal cert to issue the mandate by January -- or
`the end of January, like Mr. Torczon said? Or do you
`think that day might actually be extended for some
`reason?
` MR. KANE: Well, I think that the -- well,
`the -- there's two answers to that question, your
`Honor.
` I think, in the normal course, if we were
`not over the holiday period and the Federal Circuit
`were to deny the petition, it very likely would issue
`by the end of January or -- or within, say, that
`six-week period.
` Again, given the holidays, that might be
`extended a little bit internally as we've discussed
`it. We -- we've tentatively said no later than
`mid-February.
` JUDGE PAULRAJ: All right. So -- but I
`assume you're fine with the rehearing request on the
`expectation that the Tenth Circuit would grant
`rehearing, which would extend it beyond the end of
`January.
` The other question I had -- this is similar
`to, perhaps, the issues being played out on the
`sovereign immunity issue, is whether you plan to
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`request a stay of the mandate should the Federal
`Circuit deny the rehearing request. And that could
`further extend any mandate that is issued in that
`appeal.
` MR. KANE: I don't think that we have
`reached a conclusion on that, your Honor. We are
`dealing with the rehearing petition, at this point.
`And if that -- well, we're dealing with the rehearing
`petition.
` To -- to the extent that that's, you know,
`granted or denied, I think that will inform any
`further actions by the patent owners.
` JUDGE PAULRAJ: Okay. Let me put the
`parties on hold and confer with the panel for a
`moment.
` (Pause.)
` JUDGE PAULRAJ: Counsel, this is Judge
`Paulraj.
` I've conferred with the panel. And before
`I proceed with how we plan -- or before I let you
`know how we plan to proceed, I did want to ask
`Mr. Torczon to respond as to whether a March 1st date
`would be an acceptable date certain by which a stay
`may be lifted.
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` You know, does that seem to be -- a date
`that Mr. Kane threw out. I don't know if that's
`something you've considered.
` MR. TORCZON: It's not, your Honor. It's
`probably longer than we were looking for, but we
`would be willing to -- to, you know, defer to -- to
`the Board's sound discretion on that point.
` JUDGE PAULRAJ: All right. Thank you,
`Counsel.
` So this is what we'll do. We're not going
`to make a decision at this point. There's a lot that
`we've heard for the first time on this phone call,
`and I think a lot that the parties themselves heard
`for the first time on this call.
` So we're going to take the parties'
`arguments under advisement. And, at this point, the
`parties should proceed as if there is no stay. That
`the current schedules in the proceeding are going
`forward. That includes the -- the supplemental
`briefing that we've authorized, that the parties
`requested an extension for on -- on the effect of the
`Federal Circuit's Rule 36 averments.
` So, you know, the parties should proceed
`with those filings, and we'll issue an order in due
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`course, recognizing the need for expediency here on
`whether or not a stay will be issued.
` Are there any questions?
` MR. TORCZON: Not from Mylan, your Honor.
` MR. EVANS: Not from the Tribe, your Honor.
` JUDGE PAULRAJ: All right. Thank you,
`Counsel. With that, the call is adjourned. Tha
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