`
`
`
`
`
`
`
`Sharad K. Bijanki (sb@hkw-law.com) Reg. No. 73,400; and
`Vivek Ganti (vg@hkw-law.com) Reg. No. 71,368.
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________
`
`COMPLEX INNOVATIONS, LLC,
`
`Petitioner,
`
`v.
`
`ASTRAZENECA AB,
`
`Patent Owner
`
`_________________
`
`Case IPR2017-00631
`
`U.S. Patent 7,759,328
`
`_________________
`
`REPLY TO PATENT OWNER’S PRELIMINARY RESPONSE
`
`
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`
`
`Petitioner files this Reply to address the “physical impossibility” argument
`
`Reply to Preliminary Response, IPR2017-00631
`
`raised in Patent Owner’s Preliminary Response. This argument is based on the
`
`false premise that the canisters are filled entirely with liquid HFA 227, the well-
`
`known propellant claimed in the ’328 Patent.
`
`Patent Owner primarily attacks the Petition on the basis that the canister
`
`weights asserted by Dr. Beasley and Petitioner are “a physical impossibility.”
`
`(Paper 9 at p. 1). Specifically, Patent Owner argues that because HFA 227 “has a
`
`liquid density at room temperature of about 1.4 g/mL,” filling a canister with liquid
`
`HFA 227 must yield a canister weight greater than the weights asserted by Dr.
`
`Beasley and Petitioner. (Id. at pp. 1, 12-15) (emphasis added).
`
`Patent Owner improperly assumes that for a canister to be “full” it must
`
`necessarily be filled with only a liquid, and that there is only a single, liquid phase
`
`state of HFA 227 in the canister. (Id.). Patent Owner never states why or how it
`
`made these assumptions. Patent Owner notably fails to submit any expert
`
`testimony in support of its theory, despite the wealth of research scientists at its
`
`disposal. The closest explanation it offers is a comparison to filling a canister with
`
`liquid water, a vastly different molecule than HFA 227—this is an especially
`
`unsatisfying analogy given the lack of expert support. (Id. at p. 12).
`
`And moreover, to the contrary of Patent Owner’s argument, the evidence of
`
`record shows that at least a portion of the canister is filled with HFA 227 in its
`
`
`
`1
`
`
`
`Reply to Preliminary Response, IPR2017-00631
`
`
`
`gaseous state. (See, e.g., Ex. 1002 (file history), p. 132 (stating that generally
`
`“aerosol preparations” with a liquefied propellant have a “liquid phase” that
`
`“changes into the gas phase”); Ex. 1004 (Rogueda), p. 28 (describing a
`
`“propellant-gas interface” in HFA formulations)).
`
`Further, Patent Owner’s own exhibits establish that at least a portion of the
`
`canister is filled with HFA 227 in its gaseous state. HFA 227 need not be just a
`
`liquid “at room temperature.” (Id.). Its boiling point, the temperature at which it
`
`turns from a liquid into a gas, or vapor, is reported at -17° Celsius, far below room
`
`temperature. (See Ex. 2003 at p. 7). Further, the density of HFA 227 as a vapor at
`
`around room temperature can be about 40 times lower than its liquid density. (See
`
`Ex. 2002, Table 3 at p. 9) (dividing densities at 293.15 Kelvin, which is around
`
`“room temperature”).
`
`Therefore, a canister of HFA 227 at room temperature with the weights
`
`asserted by Dr. Beasley would not be solely liquid (i.e., it would include a vapor or
`
`gaseous state), yet it still would be “full.” Moreover, given the composition of the
`
`canister it would have a density significantly less than Patent Attorney’s
`
`liquid-only 1.4 g/mL calculation.
`
`In sum, Patent Owner’s “physical impossibility” argument, which permeates
`
`through the Patent Owner response, not only is unsupported by expert testimony
`
`but contradicted by the record evidence.
`
`
`
`2
`
`
`
`CERTIFICATION OF SERVICE
`
`
`
`The undersigned hereby certifies that the foregoing Reply was served via e-
`
`mail on June 9, 2017, in its entirety, on Patent Owner’s counsel at the following
`
`email addresses:
`
`
`csipes@cov.com
`
`areister@cov.com
`
`skamholz@cov.com
`
`
`
`
`
`Respectfully submitted,
`HILL, KERTSCHER & WHARTON, LLP
`
`Date: June 9, 2017
`
`
`
`
`
`
`
` Sharad K. Bijanki
`Lead Counsel for Petitioner
`Registration No. 73,400
`
`3350 Riverwood Pkwy, Suite 800
`Atlanta, GA 30339
`(770) 953-0995
`
`
`
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