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`Paper No. ___
`Filed: August 18, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_____________________________
`
`
`APOTEX INC., APOTEX CORP., and
`ARGENTUM PHARMACEUTICALS LLC,
`Petitioners,
`
`v.
`
`NOVARTIS A.G.,
`Patent Owner.
`
`_____________________________
`
`Case IPR2017-008541
`Patent No. 9,187,405
`
`_____________________________
`
`
`PETITIONERS’ NOTICE OF OBJECTIONS TO EVIDENCE
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`1 Case IPR2017-01550 has been joined with this proceeding.
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`Case IPR2017-00854
`Patent 9,187,405
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`TABLE OF CONTENTS
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`INTRODUCTION ........................................................................................ 1
`I.
`OBJECTIONS .............................................................................................. 1
`II.
`1.
`Thereon ..................................................................................... 1
`III. CONCLUSION ............................................................................................ 3
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`Objections to EX3002, and any Reference to/Reliance
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`-i-
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`Case IPR2017-00854
`Patent 9,187,405
`I.
`INTRODUCTION
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`Pursuant to 37 C.F.R. § 42.64(b)(1), Apotex Inc. and Apotex Corp.
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`(“Petitioner”) submits the following objections to Board Exhibit 3002, filed on
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`August 11, 2017, and any reference to or reliance on the foregoing Exhibit in
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`Board papers or future filings by the Board or by Patent Owner. Petitioner’s
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`objections apply the Federal Rules of Evidence (“F.R.E.”).
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`II. OBJECTIONS
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`1. Objections to EX3002, and any Reference to/Reliance Thereon
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`Grounds for Objection: F.R.E. 106 (Incomplete Record); F.R.E. 401, 402
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`(Irrelevant Evidence Inadmissible); F.R.E. 403 (Excluding Evidence for Prejudice,
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`Confusion, Waste of Time, or Other Reasons); F.R.E. 602 (Foundation); F.R.E.
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`802 (Inadmissible Hearsay); 37 C.F.R. § 42.6(a)(3).
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`The Board’s Ex. 3002 is a copy of an email sent by Patent Owner to the
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`Board requesting a conference call regarding scheduling the deposition of
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`Petitioner’s expert. Patent Owner’s original email to the Board itself attached a
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`separate email thread between the parties regarding their efforts to schedule the
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`deposition. In Ex. 3002, the Board fused the Patent Owner’s email to the Board
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`with the separate email thread between the parties into one document.
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`Ex. 3002 as it presently stands is prejudicial, lacks foundation, and is
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`incomplete. Notably, the thread portion contains an email from Patent Owner’s
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`
`-1-
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`
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`Case IPR2017-00854
`Patent 9,187,405
`counsel to Petitioner’s counsel that is a one-sided and inaccurate representation of
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`a meet-and-confer call the two parties had to try to resolve the scheduling
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`difficulties. Patent Owner’s email was sent to Petitioner a mere 9 minutes before
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`the Patent Owner emailed the Board to request the conference call and attached the
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`thread as a separate document. The thread is incomplete because it does not
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`contain Petitioner’s subsequent response to the Board which stated “Additionally,
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`Petitioner finds Patent Owner’s inclusion of self-serving and inaccurate emails
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`objectionable and unhelpful to advancing a productive conversation on the matter.”
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`Further, during the ensuing call with the Board on August 10, 2017,
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`referenced in the Order (paper no. 16), counsel for Patent Owner stated that it had
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`not provided a court reporter for the call because it considered the conference call
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`to “be an off-the-record” discussion with the parties. Thus, for the Board to make
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`the email thread between the parties an Exhibit in the proceeding is inconsistent
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`with the intent stated by Patent Owner at the time of the call with the Board.
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`To the extent that the Board or Patent Owner relies on any statements in
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`EX3002 for the truth of the matter asserted, such statements are inadmissible
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`hearsay. F.R.E. 801, 802, 803, 805.
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`-2-
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`Case IPR2017-00854
`Patent 9,187,405
`III. CONCLUSION
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`The aforementioned Exhibit 3002 was filed with the Order on August 11,
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`2017. These objections are made to Ex. 3002 within 5 business days of said Order,
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`pursuant to 37 C.F.R. § 42.64(b)(1).
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`Respectfully submitted,
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`/ Steven W. Parmelee /
` Steven W. Parmelee, Lead Counsel
` Reg. No. 31,990
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`Dated: August 18, 2017
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`-3-
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`Case IPR2017-00854
`Patent 9,187,405
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`CERTIFICATE OF SERVICE
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`
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`This is to certify that I caused to be served a true and correct copy of the
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`foregoing Petitioners’ Notice of Objections to Evidence, on this 18th day of
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`August, 2017, on the Patent Owner at the correspondence address of the Patent
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`Owner as follows:
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`Jane M. Love, Ph.D.
`Robert W. Trenchard
`GIBSON, DUNN & CRUTCHER LLP
`200 Park Avenue, 47th Floor
`New York, NY 10166
`Email: jlove@gibsondunn.com
`Email: rtrenchard@gibsondunn.com
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`Dated: August 18, 2017
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`Respectfully submitted,
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`/ Steven W. Parmelee /
` Steven W. Parmelee, Lead Counsel
` Reg. No. 31,990
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`-4-
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