UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`MYLAN PHARMACEUTICALS INC., TEVA PHARMACEUTICALS USA,
`INC., and AKORN INC.1
`Petitioners,
`
`v.
`
`.
`
`ALLERGAN, INC.,
`Patent Owner.
`_______________________
`Case IPR2016-01127 (8,685,930 B2)
`Case IPR2016-01128 (8,629,111 B2)
`Case IPR2016-01129 (8,642,556 B2)
`Case IPR2016-01130 (8,633,162 B2)
`Case IPR2016-01131 (8,648,048 B2)
`Case IPR2016-01132 (9,248,191 B2)
`__________________________
`SAINT REGIS MOHAWK TRIBE’S NOTICE OF
`OBJECTION TO EVIDENCE
`
`
`
`
`
`
`1 Cases IPR2017-00576 and IPR2017-00594, IPR2017-00578 and IPR2017-00596,
`IPR2017-00579 and IPR2017-00598, IPR2017-00583 and IPR2017-00599,
`IPR2017-00585 and IPR2017-00600, and IPR2017-00601., have respectively been
`joined with the captioned proceedings. The word-for-word identical page is filed
`in each proceeding identified in the caption pursuant to the Board’s Scheduling
`Order (Paper 10).
`
`
`
`1
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`MYLAN PHARMACEUTICALS INC., TEVA PHARMACEUTICALS USA,
`INC., and AKORN INC.1
`Petitioners,
`
`v.
`
`.
`
`ALLERGAN, INC.,
`Patent Owner.
`_______________________
`Case IPR2016-01127 (8,685,930 B2)
`Case IPR2016-01128 (8,629,111 B2)
`Case IPR2016-01129 (8,642,556 B2)
`Case IPR2016-01130 (8,633,162 B2)
`Case IPR2016-01131 (8,648,048 B2)
`Case IPR2016-01132 (9,248,191 B2)
`__________________________
`SAINT REGIS MOHAWK TRIBE’S NOTICE OF
`OBJECTION TO EVIDENCE
`
`
`
`
`
`
`1 Cases IPR2017-00576 and IPR2017-00594, IPR2017-00578 and IPR2017-00596,
`IPR2017-00579 and IPR2017-00598, IPR2017-00583 and IPR2017-00599,
`IPR2017-00585 and IPR2017-00600, and IPR2017-00601., have respectively been
`joined with the captioned proceedings. The word-for-word identical page is filed
`in each proceeding identified in the caption pursuant to the Board’s Scheduling
`Order (Paper 10).
`
`
`
`1
`
`
`
` Pursuant to 37 C.F.R. § 42.64(b)(1), Patent Owner, the Saint Regis Mohawk
`
`Tribe (the “Tribe”), submits the following objections to Exhibits 1144, 1145, 1147,
`
`1149, 1150, and 1152 as listed on each Exhibit List filed by Mylan
`
`Pharmaceuticals Inc. (“Mylan”) and joined by all other Petitioners. As required by
`
`37 C.F.R. § 42.64(c), the Tribe will identify all objections in order and the bases
`
`therefor.
`
`1. Exhibits 1144, 1145, 1146, and 1147.
`
`The Tribe objects that Exhibits 1144, 1145, 1146, and 1147 have no evidentiary
`
`value and have been submitted solely to prejudice the Board against the Tribe and
`
`its licensee, Allergan, plc. The Exhibits discuss characterizations of the IPR
`
`process as unfair and the perception of it as a kangaroo court, which view initiated
`
`from former Federal Circuit Chief Judge Randall Rader’s characterization of the
`
`Board as a patent death squad. The relevance of the Exhibits is nil. The Exhibits
`
`are unduly prejudicial and their prejudicial value far outweighs their non-existent
`
`probity. See FED. R. EVID. 401, 403. The Tribe trusts that the Panel recognizes the
`
`cynical purpose for which the Exhibits were offered. It is not the Panel members
`
`being referenced, but the system itself described thusly by PTAB Chief Judge
`
`James Smith, who told the PTO’s Patent Public Advisory Committee on August
`
`
`
`2
`
`
`
`14, 2014 that “If we [PTAB] weren’t, in part, doing some ‘death squadding,’ we
`
`would not be doing what the statute calls on us to do.” EX. 2108.
`
`Exhibits 1144 and 1147 are also hearsay. Petitioners used Exhibit 1144 for a
`
`quote from the Tribe’s counsel, Michael Shore; they also cited Exhibit 1147 for a
`
`similar quotation by Mr. Shore discussing a widely held view of the IPR process.
`
`Petitioners’ Opposition to Motion to Dismiss at 1; id. at n. 2. Mr. Shore is not a
`
`party to this proceeding. He made the statements as an individual person with both
`
`sovereign and non-sovereign clients affected by the AIA processes, not as “a
`
`person whom the party authorized to make a statement on the subject” nor as the
`
`Tribe’s agent. Therefore, his personal opinions and statements to the press on
`
`matters of public policy are not admissible as the statement of a party opponent.
`
`FED. R. EVID. 801(d)(2)(C)-(D).
`
`2. Exhibits 1148 and 1150.
`
`The Tribe objects that Exhibit 1148 is irrelevant and therefore inadmissible.
`
`FED. R. EVID. 402. It contains no evidentiary value to this proceeding, and it is
`
`cumulative of the other articles or news-site interviews—Exhibits 1144, 1146-47,
`
`1150, 1153, 1155, and 1157—with which Petitioners have stuffed the Board’s
`
`files. FED. R. EVID. 401-403. To the extent it could contain relevant evidence, that
`
`
`
`3
`
`
`
`evidence consists solely of unsworn statements offered for their truth and therefore
`
`are hearsay. FED. R. EVID. 802. The Board should strike Exhibit 1148.
`
`The same objections apply to Exhibit 1150. Whether two members of a 535-
`
`person legislative body dislike the Tribe’s transaction with Allergan has no
`
`relevance to this proceeding. The Board should strike it.
`
`3. Exhibit 1149.
`
`The Tribe objects to Exhibit 1149 as not relevant and hearsay. Exhibit 1149 is
`
`the self-serving statement of various trade groups. It has no relevance to this
`
`proceeding, which involves only the Tribe’s sovereign immunity and whether that
`
`immunity prevents the Board from adjudicating this proceeding. FED. R. EVID. 402.
`
`The Exhibit contains only prejudicial material and no probative value. It is also
`
`conjectural because it ascribes specific motives to the Tribe but the trade groups
`
`have no actual knowledge of the Tribe’s state of mind. To the extent it could
`
`contain relevant evidence, that evidence consists solely of unsworn statements
`
`offered for their truth and therefore are hearsay. FED. R. EVID. 802. The Board
`
`should exclude it under FED. R. EVID. 401, 402, 403, and/or 802.
`
`4. Exhibit 1152.
`
`The Tribe objects to Exhibit 1152. This is a “whitepaper” written for the
`
`Association for Accessible Medicines (“AAM”) by its attorneys. The Board
`
`
`
`4
`
`
`
`previously denied AAM’s request to participate as amicus curiae in this matter. To
`
`circumvent that ruling, the AAM hired the same law firm, Goodwin Procter LLP,
`
`that would have filed its amicus brief, had that firm draft a “whitepaper” detailing
`
`the AAM’s response to the Tribe’s exercise of its sovereign rights, and allowed
`
`Petitioners to file the whitepaper as an exhibit to work around the Board’s denial of
`
`amicus status. Such conduct should be sanctioned, not condoned by allowing a
`
`“brief” whose filing was denied into the record as an exhibit. The proof is clear:
`
`the whitepaper is not only authored by members of the same firm AAM hired to
`
`file an amicus brief but also dated after the Board’s denial of AAM’s request to
`
`participate as an amicus. The Board prevent Petitioners from subverting the
`
`Board’s existing rulings, strike Exhibit 1152 and allow the Tribe to file a Motion
`
`for Sanctions for its filing.
`
`Exhibit 1152 is cumulative of the information that Mylan, Teva and Akorn will
`
`argue in this proceeding, therefore the Board should exclude it under FED. R. EVID.
`
`403. The Exhibit also contains no information that has any tendency to make a fact
`
`more or less probable than such fact would be without the evidence and contains
`
`no facts that are of consequence in this action and cannot meet the test for
`
`relevancy under FED. R. EVID. 401(a)-(b). The Board should strike Exhibit 1152.
`
`
`
`
`
`5
`
`
`
`Conclusion
`For the foregoing reasons, the Board should strike Exhibits 1144-1150 and
`1152.
`Dated: October 18, 2017
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/ Alfonso G. Chan /
`Alfonso G. Chan
`Reg. No. 45,964
`
`
`
`
`
`
`
`
`
`6
`
`
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 CFR §§ 42.6(e)(4) and 42.205(b), the undersigned certifies
`that on October 18, 2017, a complete and entire copy of SAINT REGIS
`MOHAWK TRIBE’S NOTICE OF OBJECTIONS TO EVIDENCE was provided,
`via electronic service, to the Petitioners by serving the correspondence address of
`record as follows:
`
`Steven W. Parmelee
`Michael T. Rosato
`Jad A. Mills
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`sparmelee@wsgr.com
`mrosato@wsgr.com
`jmills@wsgr.com
`
`Wendy L. Devine
`WILSON SONSINI GOODRICH & ROSATI
`One Market Street, Spear Tower Floor 33
`San Francisco, CA 94105-1126
`wdevine@wsgr.com
`
`Douglas H. Carsten
`WILSON SONSINI GOODRICH & ROSATI
`12235 El Camino Real, Suite 200
`San Diego, CA 92130
`dcarsten@wsgr.com
`
`Richard Torczon
`WILSON SONSINI GOODRICH & ROSATI
`1700 K Street NW, 5th Floor
`Washington, DC 20006
`rtorczon@wsgr.com
`
`
`7
`
`
`
`
`
`Brandon M. White
`Crystal Canterbury
`Charles G. Curtis, Jr.
`Jennifer MacLean
`Benjamin S. Sharp
`Shannon M. Bloodworth
`PERKINS COIE LLP
`700 13th Street NW
`Washington DC 20005
`bmwhite@perkinscoie.com
`ccanterbury@perkinscoie.com
`ccurtis@perkinscoie.com
`jmaclean@perkinscoie.com
`bsharp@perkinscoie.com
`sbloodworth@perkinscoie.com
`
`Eric D. Miller
`PERKINS COIE LLP
`1201 Third Avenue, Suite 4900
`Seattle, WA 98101-3099
`emiller@perkinscoie.com
`Counsel for Mylan Pharmaceuticals, Inc.
`
`Michael R. Dzwonczyk
`Azy S. Kokabi
`Travis B. Ribar
`SUGHRUE MION, PLLC
`2100 Pennsylvania Ave., NW, Suite 800
`Washington, DC 20037
`mdzwonczyk@sughrue.com
`akokabi@sughrue.com
`tribar@sughrue.com
`Attorneys for Akorn Inc.
`
`
`And upon the remaining Petitioners as follows:
`
`
`
`
`8
`
`
`
`
`Gary J. Speier
`Mark D. Schuman
`CARLSON, CASPERS, VANDENBURGH, LINDQUIST & SCHUMAN, P.A.
`225 South Sixth Street, Suite 4200
`Minneapolis, MN 55402
`gspeier@carlsoncaspers.com
`mschuman@carlsoncaspers.com
`IPRCyclosporine@carlsoncaspers.com
`Attorneys for Teva Pharmaceuticals
`
`
`
`
`
`
`
`
`
`/Alfonso G. Chan/
`Alfonso G. Chan
`
`SHORE CHAN DEPUMPO LLP
`
`901 Main Street, Suite 3300
`Dallas, Texas 75202
`(214) 593-9110
`
`
`
`
`
`
`
`
`
`
`
`9
`
`
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