From:
`To:
`Cc:
`
`Subject:
`Date:
`Attachments:
`
`Trenchard, Robert W.
`Trials
`Mills, Jad; Rosato, Michael; TRea@Crowell.com; DYellin@Crowell.com; TLiu@agpharm.com;
`"SPark@winston.com"; "CKlein@winston.com"; "amanda.hollis@kirkland.com"; "egoryunov@kirkland.com";
`"greg.springsted@kirkland.com"; Parmelee, Steve; Blythe, Andrew Philip; Love, Jane M.
`RE: IPR2017-00854--Demonstrative Objections
`Wednesday, May 9, 2018 11:54:44 AM
`5.8.18 Correspondence (R. Trenchard).pdf
`
`To the Trial Board in IPR2017-00854:
`We represent Patent Owner Novartis. Per the Board’s oral argument order (Paper 100), today is the
`last day to raise objections to demonstrative exhibits before oral argument on May 11. Novartis
`respectfully writes to raise objections to several demonstratives from Petitioners that raise new
`arguments.
`
`As the Board directed in Paper 100, the parties exchanged demonstratives on May 4, and have since
`met and conferred to resolve most of Novartis’s objections. Those negotiations are reflected in the
`attached email chain. However, Petitioners have declined to remove certain slides related to
`improper new arguments (slides 46-48, and 52 in their May 4 deck), contending that record support
`exists for these slides in Petitioners’ observations on their examination of Novartis’s sur-reply
`witnesses. (See attached email chain.)
`
`
`· For slides 46-48, the relevant parts of these examinations focused on exhibits first
`introduced into this case at those depositions. (See Exs. 1063 (Chun Dep.) at 285:6-3011:10;
`1064 (Jusko Dep.) at 130:2-165:8; Exs. 1055-60 (new exhibits first introduced in Chun and
`Jusko depositions).) Among other things, Novartis has moved to exclude the exhibits and
`related testimony as untimely and unfair. (Paper 80 at 10-15.)
`
`· For slide 52, the objectionable material consists of Exhibits 1065-1069, submitted for the
`first time with Petitioners’ sur-reply (without expert support). Novartis has also moved to
`exclude these exhibits. (Paper 102.)
`
`
`Novartis normally would rely on its pending motions and not raise these issues in connection with
`demonstratives. But in this instance, Petitioners’ use of these materials constitutes an end-run
`around this Board’s March 29, 2018 order in Paper 66. That order barred Petitioners from
`submitting any new argumentation after Novartis’s March 23, 2018 sur-reply (Paper 63), which the
`Board had authorized in lieu of striking Petitioners’ improper new pharmacology testimony with
`their Reply. Unable to submit any new material directly, Petitioners now seek to introduce it
`indirectly via their depositions of Novartis’s witnesses and related demonstratives. The unfairness is
`manifest—Novartis has and will have no opportunity to respond directly to these materials.
`
`Novartis thus has no choice but to lodge an objection to Petitioners’ demonstratives, to preserve
`Novartis’s rights and the integrity of the Board’s orders. If the Board would find it helpful, Novartis is
`happy to submit the objectionable slides via email.
`
`If the Board would like to discuss the matter today, Novartis would be available for a teleconference
`this afternoon starting at 2:30 pm EST. Novartis would also make itself available tomorrow at the
`
`

`

`Board’s convenience. Alternatively, if the Board would prefer to take the matter under advisement
`until the hearing or after the hearing, Novartis would request that the Board expunge Petitioners’
`demonstratives from the record after oral argument.
`
`Respectfully submitted,
`
`Robert W. Trenchard (Patent Owner Backup Counsel), on behalf of
`Jane M. Love, Ph.D (Patent Owner Lead Counsel)
`
`Robert Trenchard
`
`GIBSON DUNN
`
`Gibson, Dunn & Crutcher LLP
`200 Park Avenue, New York, NY 10166-0193
`Tel +1 212.351.3942 • Fax +1 212.351.5242
`RTrenchard@gibsondunn.com • www.gibsondunn.com
`
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`