UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`EDWARDS LIFESCIENCES CORP.,
`
`Petitioner,
`
`v.
`
`BOSTON SCIENTIFIC SCIMED, INC.,
`
`Patent Owner.
`_______________
`
`Case IPR2017-00444
`Patent 6,915,560
`_______________
`
`Before the Honorable NEIL T. POWELL, JAMES A. TARTAL, and
`STACY B. MARGOLIES, Administrative Patent Judges.
`
`PATENT OWNER BOSTON SCIENTIFIC SCIMED, INC.’S
`FIRST SET OF OBJECTIONS TO
`PETITIONER EDWARDS LIFESCIENCES CORP.’S EXHIBITS
`
`
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`EDWARDS LIFESCIENCES CORP.,
`
`Petitioner,
`
`v.
`
`BOSTON SCIENTIFIC SCIMED, INC.,
`
`Patent Owner.
`_______________
`
`Case IPR2017-00444
`Patent 6,915,560
`_______________
`
`Before the Honorable NEIL T. POWELL, JAMES A. TARTAL, and
`STACY B. MARGOLIES, Administrative Patent Judges.
`
`PATENT OWNER BOSTON SCIENTIFIC SCIMED, INC.’S
`FIRST SET OF OBJECTIONS TO
`PETITIONER EDWARDS LIFESCIENCES CORP.’S EXHIBITS
`
`
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), the undersigned, on behalf of and acting
`
`in a representative capacity for Boston Scientific Scimed, Inc. (“Patent Owner”),
`
`hereby submits the following objections to Petitioner Edwards Lifesciences
`
`Corp.’s (“Petitioner”) Exhibits 1105-1125, and any reference to and/or reliance on
`
`the foregoing. Patent Owner’s objections below apply the Federal Rules of
`
`Evidence (“F.R.E.”) as required by 37 C.F.R. § 42.62.
`
`I.
`
`OBJECTIONS TO EXHIBITS 1108-1125, AND ANY REFERENCE
`TO AND/OR RELIANCE THEREON
`
`Evidence objected to: Exhibits 1008 (German Patent No. DE9034 to Nix),
`
`1109 (Certified translation of German Patent No. DE9034 to Nix); 1110 (U.S.
`
`Patent No. 2,664,996 to Andrews), 1111 U.S. Patent No. 4,308,744 to Baker),
`
`1112 (International Patent Publication No. WO1994014573 A1 to Hartley), 1113
`
`(U.S. Patent No. 5,918,511 to Sabbaghian et al.), 1114 (U.S. Patent No. 6,364,870
`
`to Pinchasik), 1115 (U.S. Patent No. 5,261,263 to Whitesell), 1116 (U.S. Patent
`
`No. 3,695,087 to Tuberman), 1117 (U.S. Patent No. 6,176,116 to Wilhelm et al.),
`
`1118 (U.S. Patent No. 6,051,002 to Morales), 1119 (U.S. Patent No. 5,951,540 to
`
`Verbeek), 1120 (U.S. Patent No. 7,892,201 to Laguna et al.), 1121 (U.S. Patent
`
`No. 6,125,523 to Brown et al.), 1122 (U.S. Patent No. 3,370,451 to Schuetz), 1123
`
`(U.S. Patent No. 3,154,978 to Baker), 1124 (U.S. Patent No. 3,417,598 to Valente),
`
`1125 (U.S. Patent No. 6,074,381 to Dinh et al.), and any reference to and/or
`
`reliance thereon.
`
`
`
`Grounds for objection: F.R.E. 401 (“Test for Relevant Evidence”);
`
`F.R.E. 402 (“General Admissibility of Relevant Evidence”); F.R.E. 403
`
`(“Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other
`
`Reasons”).
`
`A.
`
`Exhibits 1108-1125 are Irrelevant
`
`Exhibits 1108-1125 are not relevant to any ground on which this IPR was
`
`instituted and, if admitted, their minimal probative value would be substantially
`
`outweighed by the unfair prejudice they would cause, the confusing and
`
`misleading nature of the materials, the undue delay upon these proceedings, and
`
`the waste of time that would ensue, in violation of F.R.E. 401-403.
`
`II. OBJECTIONS TO EXHIBITS 1105-1107 AND ANY REFERENCE TO
`AND/OR RELIANCE THEREON
`
`Evidence objected to: Exhibit 1005 (Declaration of Neil Sheehan), Exhibit
`
`1106 (Curriculum Vitae of Neil Sheehan), and 1107 (Materials Considered by Neil
`
`Sheehan), and any reference to and/or reliance thereon.
`
`Grounds for objection: F.R.E. 401 (“Test for Relevant Evidence”); F.R.E.
`
`402 (“General Admissibility of Relevant Evidence”); F.R.E. 403 (“Excluding
`
`Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons”);
`
`37 C.F.R. § 42.61 (“Admissibility”); F.R.E. 601 (“Competency to Testify in
`
`General”); F.R.E. 602 (“Need for Personal Knowledge”); F.R.E. 701 (“Opinion
`
`Testimony by Lay Witness”); F.R.E. 702 (“Testimony by Expert Witness”); F.R.E.
`
`-2-
`
`
`
`703 (“Bases of an Expert’s Opinion Testimony”); F.R.E. 704 (“Opinion on an
`
`Ultimate Issue”); F.R.E. 705 (“Disclosing the Facts or Data Underlying an
`
`Expert’s Opinion”); 37 C.F.R. § 42.65 (“Expert Testimony; Tests and Data”).
`
`A.
`
`Ground 1: Mr. Sheehan is Not a Qualified Expert
`
`There has been no showing that Mr. Sheehan is qualified to provide expert
`
`testimony on whether the claims of U.S. Patent No. 6,915,560 (“the ’560 patent”)
`
`are valid, whether a person of ordinary skill would have been motivated to
`
`combine prior art references to disclose the inventions claimed in the ’560 patent,
`
`or whether such combination would have been accompanied by a reasonable
`
`expectation of success (see, e.g., Exhibit 1005 Sections III-VII), rendering his
`
`testimony on these matters improper and inadmissible pursuant to at least F.R.E.
`
`702-705 and 37 C.F.R. § 42.65. There has further been no showing that Mr.
`
`Sheehan is qualified to provide expert testimony on claim construction or the
`
`application of claim terms from the ’560 patent, (see, e.g., id. Sections V, VII),
`
`rendering his testimony on these matters improper and inadmissible pursuant to at
`
`least F.R.E. 702-705 and 37 C.F.R. § 42.65. Further, Mr. Sheehan has not
`
`demonstrated that he possesses first-hand knowledge, experience, or perceptions
`
`regarding the testimony identified above, rendering any lay testimony or lay
`
`opinions on these matters improper and inadmissible pursuant to at least F.R.E.
`
`601-602 and 701.
`
`-3-
`
`
`
`Accordingly, Mr. Sheehan’s testimony regarding the matters identified
`
`above, and any reference thereto and/or reliance thereon in Petitioner’s
`
`submissions, would be misleading and unfairly prejudicial to Patent Owner, in
`
`violation of F.R.E. 403.
`
`B. Mr. Sheehan’s Testimony is Not Based on Sufficient Facts, Data,
`or Scientific Evidence
`
`Mr. Sheehan’s testimony regarding the validity of the ’560 patent claims and
`
`a person of ordinary skill’s motivation to combine prior art references to disclose
`
`the inventions claimed in the ’560 patent, including how prior art devices could be
`
`combined, why prior art devices would be combined, and the function of combined
`
`prior art devices (see, e.g., id. Sections III-VII (in particular, paragraphs 155-165,
`
`168-169, 172-173, and 175-177)), is not based on sufficient facts, data, or scientific
`
`evidence, rendering his testimony on these matters improper and inadmissible
`
`pursuant to at least F.R.E. 702 and 37 C.F.R. § 42.65.
`
`C. Mr. Sheehan’s Testimony is Irrelevant
`
`Mr. Sheehan’s testimony in paragraphs 93-94, 105-108, 123-125, and 134-
`
`135 of his declaration is not relevant to any ground on which this IPR was
`
`instituted and, if admitted, its minimal probative value would be substantially
`
`outweighed by the unfair prejudice it would cause, the confusing and misleading
`
`nature of the testimony, the undue delay upon these proceedings, and the waste of
`
`time that would ensue, in violation of F.R.E. 401-403 and 37 C.F.R. § 42.61.
`
`-4-
`
`
`
`Dated: July 13, 2017
`
`Respectfully submitted,
`
`/s/ Wallace Wu
`Wallace Wu (Reg. No. 45,380)
`Jennifer A. Sklenar (Reg. No. 40,205)
`ARNOLD & PORTER KAYE SCHOLER LLP
`777 S. Figueroa Street, 44th Floor
`Los Angeles, CA 90017-5844
`Tel:
`(213) 243-4000
`Fax: (213) 243-4199
`
`Nicholas M. Nyemah (Reg. No. 67,788)
`ARNOLD & PORTER KAYE SCHOLER LLP
`601 Massachusetts Avenue, NW
`Washington, DC 20001
`Tel:
`(202) 942-5000
`Fax: (202) 942-5999
`
`Attorneys for Patent Owner Boston
`Scientific Scimed, Inc.
`
`-5-
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that a copy of the foregoing PATENT OWNER
`BOSTON SCIENTIFIC SCIMED, INC.’S FIRST SET OF OBJECTIONS TO
`PETITIONER EDWARDS LIFESCIENCES CORP.’S EXHIBITS was served on
`July 13, 2017 to the following Counsel for Petitioner via e-mail:
`
`Craig S. Summers
`Brenton R. Babcock
`Christy G. Lea
`Cheryl T. Burgess
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`2040 Main Street, 14th Floor
`Irvine, CA 92614
`2css@knobbe.com
`BoxEdwards@knobbe.com
`2brb@knobbe.com
`2cgl@knobbe.com
`2ctb@knobbe.com
`
`Attorneys for Petitioners Edwards Lifesciences Corp.
`
`/s/ Wallace Wu
`Wallace Wu (Reg. No. 45,380)
`ARNOLD & PORTER KAYE SCHOLER LLP
`777 S. Figueroa Street, 44th Floor
`Los Angeles, CA 90017-5844
`Tel:
`(213) 243-4000
`Fax: (213) 243-4199
`
`-1-
`
`
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