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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
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`ARGENTUM PHARMACEUTICALS LLC
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`Petitioner
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`v.
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`CIPLA LIMITED
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`Patent Owner
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`_____________________
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`Case No. IPR2017-00807
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`U.S. Patent No. 8,168,620
`_____________________
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`CIPLA LIMITED’S OBJECTIONS TO EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(b)(1)
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`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`Cipla Limited’s Objections to Evidence
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`Pursuant to 37 C.F.R. § 42.64(b)(1), Patent Owner Cipla Limited (“Cipla”)
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`timely objects under the Federal Rules of Evidence (“FRE”) to the admissibility of
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`Exhibits 1005, 1013, 1014, 1015, 1016, 1022, 1024, 1026, 1027, 1028, 1029, 1030,
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`1031, 1032, 1033, 1034-1049, 1051, 1052, and 1054 as well as ¶¶1-11, 13-17, 21,
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`24-31, 42-44, 52-53, 55-56, 58, 62-63, 65, 66, 68-72, 77, 84-90, 95, 96, 98, and
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`104-118 of Exhibit 1003 and ¶¶1-13, 16-20, 27, 32-35, 39-42, 44-49, 54, 59, 61,
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`and 72-77 of Exhibit 1004. Each of these exhibits was submitted by Argentum in
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`support of its Petition. These objections provide notice to Argentum that Cipla may
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`move to exclude these Exhibits, or portions thereof, under 37 C.F.R. § 42.64(c).
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`I. Exhibits 1045, 1046, 1047, 1048, ¶¶110 and 115 of Exhibit 1003, and ¶75
`of Exhibit 1004 are Irrelevant and More Prejudicial than Probative.
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`Cipla objects to each of Exhibits 1045, 1046, 1047, and 1048 under FRE 401
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`and 402 because each is irrelevant to this proceeding. Under 35 U.S.C. § 311(b), a
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`petitioner may request cancellation of a patent claim “only on the basis of prior art
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`consisting of patents or printed publications.” But Exhibits 1045, 1046, 1047, and
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`1048 post-date the priority date of the ’620 patent and are therefore not “prior art
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`consisting of patents or printed publications,” making them irrelevant here.
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`Cipla also objects to Exhibits 1045, 1046, 1047, and 1048 under FRE 403
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`because they are more prejudicial than probative: they contain prejudicial
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`statements about what was known in the art after the invention date of the ’620
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`patent, not before.
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`Cipla Limited’s Objections to Evidence
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`Cipla also objects to ¶¶110 and 115 of Exhibit 1003, which rely on Exhibits
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`1045 and 1047, respectively, and ¶75 of Exhibit 1004, which relies on Exhibits
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`1046 and 1048. These paragraphs are consequently irrelevant and prejudicial under
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`FRE 401 and thus are not admissible under FRE 402 and 403.
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`II. Exhibit 1005 is Irrelevant and More Prejudicial Than Probative.
`Cipla objects to Exhibit 1005 under FRE 402 and 403. Argentum relies on
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`Exhibit 1005 to present a claim construction in its Petition (Paper 2, 7-8), but
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`neither Argentum nor its experts rely on that construction for any issue relevant to
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`this proceeding. Because Exhibit 1005 has no bearing on any issue in dispute in
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`this proceeding, any probative value of this document is substantially outweighed
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`by the danger of confusing the issues.
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`III. Exhibits 1013, 1024, 1027, 1033, 1049, ¶¶52, 53, 55, 56, 58, 65, 71, and 98
`of Exhibit 1003, and ¶¶27, 35, 39, 41, 44, 45, 54, 59, 61, 72, 74, and 75 of
`Exhibit 1004 are Incomplete, More Prejudicial than Probative, or Rely
`Upon Incomplete or Prejudicial Exhibits.
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`Cipla objects to Exhibits 1013, 1024, 1027, 1033, and 1049 under FRE 106.
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`Exhibits 1013, 1027, 1033, and 1049 appear to be excerpts of larger documents or
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`books, and thus they are incomplete. Likewise, Exhibit 1024 appears to be missing
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`at least a title page and identification of the authors of the article.
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`Cipla also objects to Exhibits 1013, 1027, 1033, and 1049 under FRE 403.
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`Argentum’s decision to selectively extract only the portions of these books that
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`address the claim limitations is evidence of hindsight, and as such, Exhibits 1013,
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`Cipla Limited’s Objections to Evidence
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`1027, 1033, and 1049 are more prejudicial than probative.
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`Cipla also objects to ¶¶52, 53, 55, 56, 58, 65, 71, and 98 of Exhibit 1003
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`because these paragraphs rely on incomplete Exhibit 1024. Cipla objects to ¶¶39
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`and 45 of Exhibit 1004 because they rely on incomplete and prejudicial Exhibit
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`1013. Cipla objects to ¶44 of Exhibit 1004 because it relies upon incomplete and
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`prejudicial Exhibit 1027. Cipla objects to ¶¶35, 41, 54, 59, 61, 72, and 74 of
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`Exhibit 1004 because they rely on incomplete and prejudicial Exhibit 1033. Cipla
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`also objects to ¶¶27, 74, and 75 of Exhibit 1004 because they rely on incomplete
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`and prejudicial Exhibit 1049.
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`IV. Exhibits 1015, 1016, 1031, and ¶¶63, 66, 72, 89, and 95 of Exhibit 1003
`Fail to Comply With 37 C.F.R. § 42.63(b).
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`Cipla objects to Exhibits 1015, 1016, and 1031 because they fail to comply
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`with 37 C.F.R. § 42.63(b), which states that “when a party relies on a document …
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`in a language other than English, a translation of the document into English and an
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`affidavit attesting to the accuracy of the translation must be filed with the
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`document.” Exhibits 1015, 1016, and 1031 each contain portions in a foreign
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`language, and Argentum has neither provided a translation of the foreign-language
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`portions, nor provided an affidavit attesting to the accuracy of such a translation.
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`Cipla also objects to ¶¶63, 66, 72, 89, and 95 of Exhibit 1003 because they rely on
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`Exhibits 1015, 1016, and 1031.
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`V. Exhibits 1026, 1028, 1029, 1032, 1037, 1043 and 1044 are Inadmissible
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`Cipla Limited’s Objections to Evidence
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`Under 37 C.F.R. § 42.63(e) or are Otherwise Irrelevant.
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`Cipla objects to Exhibits 1026, 1028, 1029, 1032, 1037, 1043, and 1044
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`because they fail to comply with 37 C.F.R. § 42.63(e), which states that “[i]f the
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`exhibit is not filed, the exhibit list should note that fact.” Argentum’s exhibit list
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`provides no information regarding Exhibits 1026, 1028, 1029, 1032, 1037, 1043,
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`and 1044, and these exhibits are identified nowhere in Argentum’s Petition or its
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`expert declarations. Accordingly, these exhibits fail to comply with § 42.63(e).
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`Alternatively, Cipla objects to Exhibits 1026, 1028, 1029, 1032, 1037, 1043,
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`and 1044 as irrelevant under Federal Rule of Evidence 401 and are thus not
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`admissible under Federal Rule of Evidence 402. 35 U.S.C. § 312(a)(3) requires,
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`among other things, that a petition identify “the evidence that supports the grounds
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`for the challenge to each claim,” as well as “copies of patents and printed
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`publications that the petitioner relies upon in support of the petition.” None of
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`these exhibits are cited in the Petition, and thus they are irrelevant to the grounds
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`stated in the Petition.
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`VI. Exhibit 1035 is Illegible.
`Cipla objects to Exhibit 1035, portions of which are illegible.
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`VII. Exhibits 1014, 1026-1032 ,1034-1044, 1047-1049, 1051, 1052, and 1054,
`¶¶6, 27, 53, 55, 69-70, 84, 86-90, 95, and 115 of Exhibit 1003, and ¶¶6,
`27, 44-45, 59, and 75-77 of Exhibit 1004 are Irrelevant and/or Violate 37
`C.F.R. § 42.24(a)(1)(i).
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`Cipla objects to the use of Exhibits 1014, 1026-1032, 1034-1044, 1047-
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`Cipla Limited’s Objections to Evidence
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`1049, 1051, 1052, and 1054, paragraphs 6, 27, 53, 55, 69-70, 84, 86-90, 95, and
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`115 of Exhibit 1003, and paragraphs 6, 27, 44-45, 59, and 75-77 of Exhibit 1004
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`under Federal Rules of Evidence 401, 402, and 403. The aforementioned exhibits
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`are not substantively relied on, or even cited, in Argentum’s Petition.
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`Consequently, these Exhibits do not appear to make any fact of consequence more
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`or less probable than it would be without them. Cipla also objects to paragraphs 6,
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`27, 53, 55, 69-70, 84, 86-90, 95, and 115 of Exhibit 1003, and paragraphs 6, 27,
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`44-45, 59, and 75-77 of Exhibit 1004 because they rely on Exhibits 1014, 1026-
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`1032, 1034-1044, 1047-1049, 1051, 1052, and 1054.
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`Alternatively, to the extent that Argentum asserts that the aforementioned
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`exhibits are relevant, then Argentum must incorporate by reference ¶¶6, 27, 53, 55,
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`69-70, 84, 86-90, 95, and 115 of Exhibit 1003 and ¶¶6, 27, 44-45, 59, and 75 of
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`Exhibit 1004. Doing so makes the Petition overly lengthy, violating the petition
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`word count set forth in 37 C.F.R. § 42.24(a)(1)(i).
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`VIII. Paragraphs 1-11, 13-17, 21, 24-31, 42-44, 56, 62, 68-69, 71, 77, 85-87, 96,
`104-114, and 116-118 of Exhibit 1003 and Paragraphs 1-13, 16-20, 32-
`34, 40-42, 46-49, and 72-77 of Exhibit 1004 are Irrelevant.
`Cipla objects to paragraphs 1-11, 13-17, 21, 24-31, 42-44, 56, 62,1 68-69,
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`1 Argentum cited paragraphs 42-44, 56, and 62 in its Petition, but those
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`citations appear only as part of a 23-paragraph citation. See Paper 2, 49 (“see also
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`id. ¶¶41-64”).
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`Cipla Limited’s Objections to Evidence
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`71, 77, 85-87, 96, 104-114, and 116-118 of Exhibit 1003 and paragraphs 1-13, 16-
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`20, 32-34, 40-42, 46-49, and 72-77 of Exhibit 1004 under Federal Rules of
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`Evidence 401-403 because they are irrelevant. Specifically, 35 U.S.C. § 312(a)(3)
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`requires, among other things, that a petition identify “the evidence that supports the
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`grounds for the challenge to each claim,” as well as “copies of patents and printed
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`publications that the petitioner relies upon in support of the petition.” The
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`aforementioned paragraphs are not cited anywhere in Argentum’s Petition, and
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`accordingly, they do not make any fact of consequence in this proceeding more or
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`less probable than it would be without them.
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`Cipla also objects to the aforementioned paragraphs insofar as Argentum’s
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`reliance on these paragraphs would be impermissible, misleading, irrelevant, and
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`unfairly prejudicial to Cipla. To the extent that Argentum attempts to make use of
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`these paragraphs in the future to support new substantive positions, doing so would
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`be untimely, in violation of the rules of this proceeding, and unfairly prejudicial to
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`Cipla. Cipla further objects to Exhibits 1003 and 1004 to the extent they rely on
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`exhibits to which Cipla objects above.
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` Respectfully Submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
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`__________________________
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`Cipla Limited’s Objections to Evidence
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`Date: September 5, 2017
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`1100 New York Avenue, NW
`Washington, DC 20005
`(202) 772-8501
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` Dennies Varughese
` Lead Attorney for Patent Owner
` Registration No. 61,868
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`CERTIFICATE OF SERVICE (37 C.F.R. §§ 42.6(e))
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`The undersigned hereby certifies that the above-captioned “Cipla Limited’s
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`Objections to Evidence Pursuant to 37 C.F.R. § 42.64(b)(1)” was served in its
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`entirety on September 5, 2017, upon the following parties via email:
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`Michael R. Houston: mhouston@foley.com
`Joseph P. Meara: jmeara@foley.com
`James P. McParland: jmcparland@foley.com
`ARG-dymista@foley.com
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`FOLEY & LARDNER LLP
`321 North Clark Street
`Suite 2800
`Chicago, IL 60654
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`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
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`__________________________
`Dennies Varughese
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`Date: September 5, 2017
`Lead Attorney for Patent Owner
`1100 New York Avenue, N.W.
`Registration No. 61,868
`Washington, D.C. 20005-3934
`(202) 371-2600
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