UNITED STATES PATENT AND TRADEMARK OFFICE
`
`________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`________________________
`
`DUK SAN NEOLUX CO., LTD.
`
`Petitioner,
`
`v.
`
`IDEMITSU KOSAN CO., LTD.
`
`Patent Owner
`
`______________
`
`Case IPR2016–00148
`
`U.S. Patent No. 9,056,870
`
`____________
`
`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
`
`Idemitsu Ex. 2004, pg. 1
`IPR2017-00197
`DukSan v Idemitsu
`
`
`
`________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`________________________
`
`DUK SAN NEOLUX CO., LTD.
`
`Petitioner,
`
`v.
`
`IDEMITSU KOSAN CO., LTD.
`
`Patent Owner
`
`______________
`
`Case IPR2016–00148
`
`U.S. Patent No. 9,056,870
`
`____________
`
`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
`
`Idemitsu Ex. 2004, pg. 1
`IPR2017-00197
`DukSan v Idemitsu
`
`
`
`Patent Owner’s Motion to Exclude Evidence
`Case IPR2016-00148
`U.S. Patent No. 9,056,870
`
`Statement of Precise Relief Requested
`
`Pursuant to 37 C.F.R. § 42.64(c), Idemitsu Kosan Co., Ltd. (“Patent
`
`
`I.
`
`Owner”) requests the Patent and Trial Appeal Board (“the Board”) exclude all of
`
`Exhibits 1028, 1029, 1030, 1031, 1032, and portions of Exhibit 1033 submitted by
`
`Duk San Neolux Co., Ltd. (“Petitioner”) and all arguments based thereon,
`
`including specifically ¶¶ 8–10, 12, 13, 15–20, 22, 24–27, 28, 34, 36–40, 42–60,
`
`62–70, 72–74, and 76–81 of Exhibit 1033.
`
`Patent Owner timely objected to these exhibits on November 23, 2016. See
`
`Paper 19.
`
`II.
`
`
`Statement of Material Facts
`Petitioner filed its Petition for inter partes review on November 4, 2015,
`
`which included a Declaration by Petitioner’s declarant, Dr. Schwartz (Ex. 1003).
`
`See Paper 1. On May 16, 2016, the Board instituted review on three grounds: (i)
`
`obviousness over the combination of Heil and Kawaguchi; (ii) obviousness over
`
`the combination of Kai and Kawaguchi; and (iii) obviousness over the combination
`
`of Kai, Kawaguchi, and Heil (claim 21 only). See Paper 8, at 22.
`
`
`
`In response to the evidence and arguments raised in the Petition regarding
`
`the three instituted grounds, Patent Owner filed its Response on August 16, 2016.
`
`The Patent Owner Response demonstrated deficiencies in the Petitioner’s
`
`1
`
`Idemitsu Ex. 2004, pg. 2
`IPR2017-00197
`DukSan v Idemitsu
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`
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`Patent Owner’s Motion to Exclude Evidence
`Case IPR2016-00148
`U.S. Patent No. 9,056,870
`
`
`interpretation and application of the Kawaguchi reference, including factual
`
`misrepresentations made by Dr. Schwartz, which the Board relied on in the
`
`institution decision. See Paper 8, at 16 and 19.
`
`
`
`On November 16, 2016, Petitioner filed its Reply to the Patent Owner’s
`
`Response and submitted Exhibits 1028, 1029, 1030, 1031, 1032, and 1033 to assert
`
`a new ground of obviousness based on Heil, Kawaguchi, Hu (Ex. 1032), Moorthy
`
`(Ex. 1030), Anthony (Ex. 1031), and Toray (Exs. 1028–1029) and to present new
`
`arguments regarding obviousness. See Paper 19 (Patent Owner’s Objections to
`
`Evidence); see also Paper 20 (Patent Owner’s Identification of New Arguments
`
`and Evidence in Petitioner’s Reply). Dr. Schwartz’s supplemental declaration
`
`devotes nearly 43 of its 47 pages to expound on the Petitioner’s new arguments
`
`and the newly cited references. See Ex. 1033, at 4–46. For comparison, Dr.
`
`Schwartz’s first declaration only devoted 3 ½ pages to the three instituted grounds.
`
`See Ex. 1003, at 33–36.
`
`
`
`Prior to filing the Reply, Petitioner filed another Petition for inter partes
`
`review of the same claims of the present patent on November 2, 2016. Duk San
`
`Neolux Co., Ltd. v. Idemitsu Kosan Co., Ltd., Case IPR2017-00197, Paper 1. In its
`
`follow-on Petition, Petitioner alleges a ground of obviousness (Ground 5) based on
`
`2
`
`Idemitsu Ex. 2004, pg. 3
`IPR2017-00197
`DukSan v Idemitsu
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`
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`Patent Owner’s Motion to Exclude Evidence
`Case IPR2016-00148
`U.S. Patent No. 9,056,870
`
`
`a combination of Heil, Kawaguchi, Iwakuma, Moorthy (Ex. 1030), Anthony (Ex.
`
`1031), and Toray (Exs. 1028/1029). In relevant part, Petitioner states:
`
`In Ground 5, Anthony, Moorthy, and Toray teach the standard
`conversion of OFET compounds to OLED compounds by the
`addition of one or more bulky groups to the OFET compound to
`provide an OLED compound. Thus, Ground 5 presents
`arguments and prior art substantially different from those
`instituted in IPR2016-00148.”
`
`Id., at 64 (emphasis added). Thus, by the Petitioner’s own admission, the belatedly
`
`presented arguments are “substantially different” from those instituted in the
`
`present inter partes review.
`
`III. Relevant Law
`
`The admissibility of exhibits submitted in a PTAB proceeding is governed
`
`by the Federal Rules of Evidence. 37 C.F.R. § 42.62; Office Patent Trial Practice
`
`Guide, 77 Fed. Reg. 48756, 48758 (Aug. 14, 2012).
`
`
`
`
`
`“A reply may only respond to arguments raised in the . . . patent owner
`
`response.” 37 C.F.R. § 42.23(b). The fact that an argument may be responsive to
`
`Patent Owner’s arguments set forth in its Response does not relieve the Petitioner
`
`of its initial burden to “identify ‘with particularity’ the ‘evidence that supports the
`
`grounds for the challenge to each claim.’” Maxlinear, Inc. v. Cresta Tech. Corp.,
`
`3
`
`Idemitsu Ex. 2004, pg. 4
`IPR2017-00197
`DukSan v Idemitsu
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`
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`Patent Owner’s Motion to Exclude Evidence
`Case IPR2016-00148
`U.S. Patent No. 9,056,870
`
`
`Case IPR2015-00594, Paper 90, at 29 (P.T.A.B. Aug. 15, 2016) (quoting
`
`Intelligent Bio-Systems, Inc. v. Illumina Cambridge LTD., 821 F.3d 1359, 1367–68
`
`(Fed. Cir. 2016)); see also 37 C.F.R. § 42.104 (describing required content of the
`
`Petition).
`
`
`
`“[A] reply that raises a new issue or belatedly presents evidence will not be
`
`considered and may be returned.” Office Patent Trial Practice Guide, 77 Fed. Reg.
`
`at 48,767. One indication that a new issue has been raised in a reply is where a
`
`petitioner submits “new evidence necessary to make out a prima facie case” of
`
`unpatentability of an original claim. Id. Considering evidence that a party belatedly
`
`presents in a proceeding prejudices the other party. See, e.g., Intri-Plex Techs., Inc.
`
`v. Saint-Gobain Performance Plastics Rencol Ltd., IPR2014-00309, Paper 83, at
`
`13 (P.T.A.B. Mar. 23, 2015) (“[I]t is established beyond peradventure that it is
`
`improper to sandbag one’s opponent by raising new matter in reply.”) (citation and
`
`internal quotation marks omitted).
`
`IV. The Board Should Exclude Exhibits 1028–1033 As Untimely, Irrelevant,
`and Prejudicial
`
`Exhibits 1028–1033 are submitted to support arguments beyond the proper
`
`scope of a Reply (37 C.F.R. § 42.23(b)) and therefore lack relevance (Fed. R. Evid.
`
`402).
`
`4
`
`Idemitsu Ex. 2004, pg. 5
`IPR2017-00197
`DukSan v Idemitsu
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`
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`Patent Owner’s Motion to Exclude Evidence
`Case IPR2016-00148
`U.S. Patent No. 9,056,870
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`Exhibits 1028–1033 are untimely because they present new opinions and
`
`
`
`
`evidence that could have been raised in the petition. By the Petitioner’s own
`
`admission, its new theory based on the standard conversion of OFET to OLED
`
`allegedly illustrated by Moorthy (Ex. 1030), Anthony (Ex. 1031), and Toray (Ex.
`
`1028/1029) is “substantially different from [the grounds] instituted in IPR2016-
`
`00148.” Duk San Neolux Co., Ltd. v. Idemitsu Kosan Co., Ltd., Case IPR2017-
`
`00197, Paper 1, at 64. In its Reply, Petitioner belatedly presents this substantially
`
`different theory using its declarant, Dr. Schwartz, as a conduit to introduce these
`
`new arguments and evidence under the guise of providing rebuttal evidence.
`
`Because of the Patent Owner’s inability to respond to the untimely evidence and
`
`arguments, Exhibits 1028–1033 are unfairly prejudicial (Fed. R. Evid. 403).
`
`
`
`Paragraphs 8–10, 12, 13, 15–20, 22, 24–28, 34, 36–40, 42–60, 62–70, 72–
`
`74, and 76–81 of Dr. Schwartz’s supplemental declaration (Ex. 1033) should be
`
`excluded as irrelevant as exceeding the scope of a proper reply. To the extent that
`
`this evidence may be considered relevant, it should be excluded because its
`
`probative value is substantially outweighed by its risk of unfair prejudice and
`
`confusing the issues as Dr. Schwartz’s statements contradict his original
`
`declaration (Ex. 1003) and the Petition (Paper 1).
`
`5
`
`Idemitsu Ex. 2004, pg. 6
`IPR2017-00197
`DukSan v Idemitsu
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`Patent Owner’s Motion to Exclude Evidence
`Case IPR2016-00148
`U.S. Patent No. 9,056,870
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`Dr. Schwartz’s original position, in full, for the combination of Heil and
`
`
`
`
`Kawaguchi reads, as follows:
`
`One of the key requirements for any organic molecule that is
`designed to serve as the host material in an organic EL
`device is that it is highly electrically conductive.
`
`Kawaguchi demonstrated that taking the compounds whose
`aromatic backbone was originally specified in Heil … and
`asymmetrically modifying
`them
`to
`include dissimilar
`heteroatoms (such as N and O) produced new compounds
`that strongly π-stacked in the solid-state. This molecular
`interaction
`improves
`the oxidative stability of
`these
`compounds, and also improves the π-electron overlap,
`greatly
`increasing
`the carrier mobility. This
`is why
`Kawaguchi proposed using compounds having two different
`heteroatoms (NR1 and O) such as these for use in organic
`field-effect transistors. As presented above, compounds with
`a backbone that is known to work in organic EL devices and
`whose substituents given them a high carrier mobility in
`organic FETs are highly likely to be excellent candidates for
`organic EL devices themselves. A person knowledgeable in
`the OLED field would be motivated to use such compounds
`to improve or modify known organic EL materials. Thus, it
`would be obvious to a person skilled in the art to combine
`Heil and Kawaguchi to arrive at the same conclusions
`
`6
`
`Idemitsu Ex. 2004, pg. 7
`IPR2017-00197
`DukSan v Idemitsu
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`Patent Owner’s Motion to Exclude Evidence
`Case IPR2016-00148
`U.S. Patent No. 9,056,870
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`reached in the ’870 patent concerning this class of molecules
`for organic EL applications, rendering claims 1, 3, 4, and
`14-26 obvious.
`
`Ex. 1003, ¶ 53 (emphasis added). That is, Dr. Schwartz directly attributed the
`
`increase in both the oxidative stability and the carrier mobility to the “strongly π-
`
`stacked” interaction in the solid state.
`
`
`
`In complete contradiction, Dr. Schwartz’s supplemental declaration states:
`
`It was known in the field that compounds with aromatic or
`heteraromatic skeletons that might be used as the emissive
`layer in OLEDs could have strong π-stacking interactions in
`the solid-state. These interactions can promote charge
`transport between adjacent molecules but they also can lead
`to excimer or aggregate formation and thus potentially a loss
`of luminescence efficiency. It was also known, however, that
`adding a bulky substituent to a compound having an
`aromatic or heteroaromatic skeleton that is prone to
`excessive π-stacking can provide steric hindrance that would
`be expected to break up aggregation in the solid state
`between adjacent molecules and thus mitigate strong π-
`stacking interactions as far as luminescence is concerned.
`Thus, a POSITA would have been well aware of the need to
`create molecules with substituents of appropriate bulk for
`controlling the amount of π-stacking and thus tuning the
`tradeoff between carrier mobility and
`luminescence
`
`7
`
`Idemitsu Ex. 2004, pg. 8
`IPR2017-00197
`DukSan v Idemitsu
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`
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`Patent Owner’s Motion to Exclude Evidence
`Case IPR2016-00148
`U.S. Patent No. 9,056,870
`
`efficiency as a means to optimize OLED materials; this
`concept has been discussed and illustrated in the prior art,
`including, e.g., Moorthy (DSN-1030), Anthony (DSN-
`1031), and Toray (DSN-1028).
`
`Ex. 1033, ¶ 8 (emphasis added); see also id. at ¶ 60 (stating “[s]ince the
`
`introduction of N/O bridging atoms provides improved oxidative stability and
`
`possibly increased pi-stacking, a POSITA knows that when such compounds are
`
`also modified with bulky side groups … it is possible to convert a potential OFET
`
`compound into an OLED compound.).
`
`
`
`In total, Dr. Schwartz opines on the need to reduce, mitigate, fine tune, and
`
`control strong-π stacking interactions – the same exact strong π-stacking
`
`interactions that he stressed in his first declaration were necessary and responsible
`
`for the improved oxidative stability and π-electron overlap. Ex. 1003, ¶ 53.
`
`Critically, it was the strong π-stacking that the Petitioner and Dr. Schwartz set forth
`
`as the motive for the asymmetric modification. Now, thru Dr. Schwartz’s
`
`supplemental declaration and Exhibits 1028–1032, the Petitioner belatedly presents
`
`a completely different theory that relies on the conversion of OFET materials to
`
`OLED materials to “mitigate strong π-stacking interactions” – prior art and
`
`arguments that the Petitioner admits are “substantially different from those
`
`instituted in IPR2016-00148.” Duk San Neolux, Case IPR2017-00197, Paper 1, at
`
`8
`
`Idemitsu Ex. 2004, pg. 9
`IPR2017-00197
`DukSan v Idemitsu
`
`
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`Patent Owner’s Motion to Exclude Evidence
`Case IPR2016-00148
`U.S. Patent No. 9,056,870
`
`
`64. Accordingly, ¶¶ 8–10, 13, 15, 16, 36–39, 42–45, 47, 48, 58–60, 62, 64–66, and
`
`81 of Dr. Schwartz’s supplemental declaration (Ex. 1033) and Exhibits 1028–1032
`
`should be excluded as any relevance is outweighed by the risk of unfair prejudice.
`
`
`
`Moreover, Dr. Schwartz’s assertions with respect to oxidative stability are
`
`an attempt to confuse the issues. As noted above, Dr. Schwartz expressly states in
`
`his first declaration that “this molecular interaction [i.e., strong π-stacking in the
`
`solid-state] improves the oxidative stability of these compounds, and also improves
`
`the π-electron overlap, greatly increasing the carrier mobility.” Ex. 1003, ¶ 53.
`
`That is, according to Dr. Schwartz’s first declaration, the strong π-stacking
`
`interaction is responsible for the improved oxidative stability over similar
`
`symmetrical compounds.
`
`
`
`The Petitioner reiterated Dr. Schwartz’s original theory in the Petition,
`
`stating that “Kawaguchi’s compounds possess enhanced stability regarding air
`
`degradation and/or photoxidation, as compared with similar symmetrical
`
`compounds in which the acene structure contains two O atoms or two N-phenyl
`
`groups…. Thus, Kawaguchi teaches the POSITA to utilize an asymmetrical
`
`arrangement … for improving oxidative stability and improved orbital interaction
`
`of stacked molecules.” Pet., at 48, last ¶–49, first ¶ (emphasis added). Accordingly,
`
`both the Petition and Dr. Schwartz’s first declaration set forth a theory in which the
`
`9
`
`Idemitsu Ex. 2004, pg. 10
`IPR2017-00197
`DukSan v Idemitsu
`
`
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`Patent Owner’s Motion to Exclude Evidence
`Case IPR2016-00148
`U.S. Patent No. 9,056,870
`
`
`asymmetric modification provides strong π-stacking, which in turn provides
`
`increased oxidative stability and carrier mobility such that both O/O and N/N
`
`heteroatom systems are less environmentally stable than the N/O.
`
`
`
`In Exhibit 1033, however, Dr. Schwartz now states that the oxidative
`
`stability is based on Kawaguchi’s photophysical and electrochemical studies
`
`showing symmetrically bridged O/O heteroatoms are more stable towards
`
`oxidation than symmetrically N/N bridged heteroatoms, where the environmental
`
`stability of the symmetrically N/N bridged heteroatoms can be improved by
`
`modifying the backbone to have asymmetrical N/O combination. Ex. 1033, at ¶ 12;
`
`Compare Pet., at 48, last ¶. In total, Dr. Schwartz injects this new standalone
`
`oxidative stability theory and the new theory of controllably tunable HOMO,
`
`LUMO, or bandgap values at ¶¶ 12, 16–20, 45, 46, 51–53, 57, 58, 60, 62, 63, and
`
`66 of Exhibit 1033.
`
`
`
`In ¶¶ 20, 46, 52, 62, and 72–72 of Exhibit 1033, for the first time, Dr.
`
`Schwartz sets forth a new theory of obviousness based on the “close chemical and
`
`electrochemical relationships between O and S atoms.” Ex. 1033, at ¶ 73. Dr.
`
`Schwartz included no such statements with respect to the instituted grounds in his
`
`first declaration. See Ex. 1003, at 33–36. And no such statements were presented in
`
`the Petition. See Paper 1, at 47–59.
`
`10
`
`Idemitsu Ex. 2004, pg. 11
`IPR2017-00197
`DukSan v Idemitsu
`
`
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`Patent Owner’s Motion to Exclude Evidence
`Case IPR2016-00148
`U.S. Patent No. 9,056,870
`
`In ¶¶ 22, 28, 34, 40, 49, 50, 54–56, 63, and 67–70 of Exhibit 1033, for the
`
`
`
`
`first time, Dr. Schwartz sets forth a lead compound analysis and obviousness
`
`theory based on the selection of N/N heteroatoms or compound 4 of Heil as a
`
`starting point for modification of Heil. Dr. Schwartz included no such statements
`
`with respect to the instituted grounds in his first declaration. See Ex. 1003, at 33–
`
`36. And no such statements were presented in the Petition. See Paper 1, at 47–59.
`
`
`
`In ¶¶ 24–27 and 76–80 of Exhibit 1033, for the first time, Dr. Schwartz sets
`
`forth a lead compound analysis based on Kai and a new theory for the replacing the
`
`indole N rather than the carbazole N with an O atom. Dr. Schwartz included no
`
`such statements with respect to the instituted grounds in his first declaration. See
`
`Ex. 1003, at 33–36. And no such statements were presented in the Petition. See
`
`Paper 1, at 47–59.
`
`
`
`In ¶¶ 8, 11–13, 22, 28, 34, 37–40, 45–47, 49, 55, 58–60, 63–67, 69, 73, 76,
`
`78, and 80 of Exhibit 1033, Dr. Schwartz mischaracterizes the teachings of the
`
`cited references. For instance, Dr. Schwartz mischaracterizes the disclosure of
`
`Heil, stating that “Heil’s broadest statement could be B, C, Si, O, S, N and P (6:18-
`
`21).” Ex. 1033, ¶ 28; see also id. at ¶ 34, 49, 55. Heil, however, sets for 14
`
`different X groups, stating that “X is on each occurrence, identically or differently,
`
`a divalent bridge selected from B(R1), C(R1)2, Si(R1)2, C=O, C=NR1, C=C(R1)2, O,
`
`11
`
`Idemitsu Ex. 2004, pg. 12
`IPR2017-00197
`DukSan v Idemitsu
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`
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`Patent Owner’s Motion to Exclude Evidence
`Case IPR2016-00148
`U.S. Patent No. 9,056,870
`
`
`S, S=O, SO2, N(R1), P(R1), P(=O)R1, P(=S)R1 or a combination of 2, 3 or 4 of
`
`these systems.” Ex. 1015, at 6:18–21.
`
`
`
`Similarly, at ¶ 60 of Exhibit 1033, Dr. Schwartz states that “the introduction
`
`of N/O bridging atoms provides improved oxidative stability and possibly
`
`increased π-stacking.” This is a mischaracterization of Kawaguchi, which states
`
`that “Ar–BFCs [N/O] … exhibit antiparallel cofacial π-stacking in the solid state,
`
`which would cause strong electronic coupling,” while “DBBDF [O/O] showed a
`
`molecular ordering dominated by edge-to-face interactions” and “DPh-IC [N/N]
`
`also formed dominate edge-to-face interactions …. However, the two pendant
`
`phenyl groups on the nitrogen atoms of DPh-IC caused weaker interaction between
`
`the cores….” Ex. 1016, at p. 3 (bottom of left col.) and p. 4 (right col., second ¶).
`
`Dr. Schwartz’s statement in ¶ 60 also directly contradicts his first declaration,
`
`which states that “dissimilar heteroatoms (such as N and O) produced new
`
`compounds that strongly π-stacked in the solid-state.” Ex. 1003, at ¶ 53.
`
`
`
`Overall, Petitioner relies on Exhibit 1033 as a conduit to introduce irrelevant
`
`and prejudicial evidence that only serves to confuse the issues and to support an
`
`entirely new and, by the Petitioner’s own admission, a substantially different
`
`theory of obviousness. Thus, to the extent that Exhibit 1033 includes untimely,
`
`irrelevant, and prejudicial evidence and attempts to confuse the issues, it should be
`
`12
`
`Idemitsu Ex. 2004, pg. 13
`IPR2017-00197
`DukSan v Idemitsu
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`
`
`Patent Owner’s Motion to Exclude Evidence
`Case IPR2016-00148
`U.S. Patent No. 9,056,870
`
`
`excluded. This includes Exhibits 1028–1032, which are relied on by the Petitioner
`
`and Dr. Schwartz to introduce their new and substantially different theories of
`
`obviousness, to confuse the issues, and to unfairly prejudice the Patent Owner.
`
`V. Conclusion
`For at least the reasons stated above, Patent Owner requests that the Board
`
`
`
`
`Respectfully submitted,
`
`OBLON, McCLELLAND, MAIER &
`NEUSTADT, L.L.P.
`
`
`
` /s/ Jacob A. Doughty
`Jacob A. Doughty (Reg. No. 46,671)
`Attorney for Patent Owner
`IDEMITSU KOSAN CO., LTD.
`
`grant this Motion to Exclude.
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`Dated: January 6, 2017
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`Customer Number
` 22850
`Tel. (703) 413–3000
`Fax. (703) 413–2220
`
`13
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`Idemitsu Ex. 2004, pg. 14
`IPR2017-00197
`DukSan v Idemitsu
`
`
`
`
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`Patent Owner’s Motion to Exclude Evidence
`Case IPR2016-00148
`U.S. Patent No. 9,056,870
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies service of
`
`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE on the counsel of
`
`record for the Petitioner by filing this document through the Patent Trial and
`
`Appeal Board’s E2E system as well as sending a copy via electronic mail to
`
`counsel for Petitioner at the following email addresses:
`
`wholdach@vorys.com
`agzytcer@vorys.com
`mskoh@vorys.com
`lgubinsky@vorys.com
`lmelliottt@vorys.com
`patlaw@vorys.com
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`
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`Dated: January 6, 2017
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` /s/ Jacob A. Doughty
`Jacob A. Doughty (Reg. No. 46,671)
`Attorney for Patent Owner
`IDEMITSU KOSAN CO., LTD.
`
`
`
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`14
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`Idemitsu Ex. 2004, pg. 15
`IPR2017-00197
`DukSan v Idemitsu
`
`
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