`571-272-7822
`
`
`
`
`Paper No. 16
`Entered: August 11, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`APOTEX INC. and APOTEX CORP., and
`ARGENTUM PHARMACEUTICALS LLC,
`Petitioners,
`v.
`NOVARTIS AG,
`Patent Owner.
`_______________
`
`Case IPR2017-008541
`Patent 9,187,405 B2
`_______________
`
`
`Before LORA M. GREEN, CHRISTOPHER M. KAISER,
`and ROBERT A. POLLOCK, Administrative Patent Judges.
`
`POLLOCK, Administrative Patent Judge.
`
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`
`1 Case IPR2017-01550 has been joined with this proceeding.
`
`
`
`IPR2017-00854; IPR2017-01550
`Patent 9,187,405 B2
`
`
`In response to an August 8, 2017, email communication from Patent Owner,
`(Ex. 3002), the panel conducted a conference with counsel on August 10, 2017, to
`discuss scheduling for the deposition of Petitioner’s expert, Dr. Giesser. Present
`were Judges Green, Kaiser, and Pollock; Michael Rosato, Jad Mills, and Steven
`Parmalee for Petitioner, Apotex; and Robert Trenchard and Jane Love for Patent
`Owner, Novartis.
`As we understand the situation, counsel for Patent Owner has asked for
`deposition dates of September 18, 19, 20, 27, and 28, as well as October 3 and 4.
`Dr. Giesser has rejected each of those dates. Petitioner eventually offered three
`dates: September 8, 22, and 23, which counsel for Patent Owner found
`unacceptable because September 8 is a trial conflict, Friday, September 22 is Rosh
`Hashanah, and Saturday, September 23, would have required counsel for Patent
`Owner to travel cross-country during or immediately after the holiday.
`Speaking on behalf of Apotex, Mr. Rosato explained that Dr. Giesser is a
`practicing physician whose availability is restricted by obligations to patient care.
`In relying on Dr. Giesser as an expert, however, Petitioner takes on an obligation to
`make that person reasonably available for cross examination. And although we
`appreciate Mr. Rosato’s representation that Petitioner is willing to come to an
`agreement regarding a deposition date, Mr. Rosato was warned that if Dr. Giesser
`is not reasonably made available for cross-examination, we may order Petitioner to
`show cause why Dr. Giesser’s Declaration should not be stricken from the record.
`
`Accordingly, we enter the following order.
`
` 2
`
`
`
`
`
`
`
`IPR2017-00854; IPR2017-01550
`Patent 9,187,405 B2
`
`
`ORDER
`
`ORDERED that Petitioner will offer three additional weekdays that are not
`Jewish holidays when Dr. Giesser is available for deposition. Such dates will be
`on or before DUE DATE 1 (currently October 13, 2017). If necessary, parties may
`stipulate to different dates for DUE DATES 1–5 as set forth in the Scheduling
`Order.
`
`FURTHER ORDERED that if parties cannot reach agreement regarding a
`date for Dr. Giesser’s deposition by September 1, 2017, they should arrange a
`conference call with the panel.
`
`
`
` 3
`
`
`
`
`
`
`
`
`
`IPR2017-00854; IPR2017-01550
`Patent 9,187,405 B2
`
`
`FOR PETITIONER APOTEX:
`Steven W. Parmelee
`Michael T. Rosato
`Jad A. Mills
`WILSON SONSINI GOODRICH & ROSATI
`sparmelee@wsgr.com
`mrosato@wsgr.com
`jmills@wsgr.com
`
`FOR PETITIONER ARGENTUM:
`Teresa Stanek Rea
`Deborah H. Yellin
`Shannon M. Lentz
`CROWELL & MORING LLP
`TRea@Crowell.com
`DYellin@crowell.com
`SLentz@Crowell.com
`
`Tyler C. Liu
`ARGENTUM PHARMACEUTICALS, LLC
`TLiu@agpharm.com
`
`
`FOR PATENT OWNER:
`Jane M. Love
`Robert Trenchard
`GIBSON, DUNN & CRUTCHER LLP
`jlove@gibsondunn.com
`rtrenchard@gibsondunn.com
`
`
`
`
` 4
`
`
`
`
`
`
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