UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`ARGENTUM PHARMACEUTICALS, LLC
`Petitioner
`
`v.
`
`ALCON RESEARCH LIMITED
`Patent Owner
`
`U.S. Patent No. 8,268,299
`
`Inter Partes Review Case No. 2017-01053
`
`PETITIONER OBJECTIONS TO EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`ARGENTUM PHARMACEUTICALS, LLC
`Petitioner
`
`v.
`
`ALCON RESEARCH LIMITED
`Patent Owner
`
`U.S. Patent No. 8,268,299
`
`Inter Partes Review Case No. 2017-01053
`
`PETITIONER OBJECTIONS TO EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioner Argentum Pharmaceuticals
`
`LLC (“Argentum”) submits the following objections to the evidence/exhibits
`
`identified by Exhibit Number below, which were served by Patent Owner, Alcon
`
`Research, Ltd. (“Alcon”), in conjunction with Patent Owner’s Response (Paper
`
`22). These objections are timely, having been served within five business days of
`
`the service of the evidence. 37 C.F.R. § 42.64(b)(1).
`
`Exhibit
`No.
`
`1001
`
`Federal
`Rule(s) of
`Evidence
`802
`
`1025
`
`1026
`
`2006,
`¶¶15-21
`
`802
`
`802
`
`802
`
`2007,
`¶¶13-21
`
`802
`
`Objection
`
`Inadmissible hearsay, where relied upon for the truth
`of the matter asserted such as the reported
`experimental results (e.g., Ex. 2023 ¶¶96, 102, 103;
`Ex. 2025 ¶¶30, 35, 38)
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay to the extent the declarant is
`relying on statements from another person or source,
`e.g., one or more persons from the Formulations
`Development Group, and/or the cited laboratory
`notebooks (hearsay within hearsay)
`
`Inadmissible hearsay to the extent the declarant is
`relying on statements from another person or source,
`e.g., one or more persons from the Formulations
`Development Group, and/or the cited laboratory
`notebooks (hearsay within hearsay)
`
`2
`
`
`
`2008 to
`2022
`
`106, 802, 901;
`37 CFR §42.65
`
`802
`
`802
`
`802
`
`2023,
`¶¶56, 64,
`67, 96,
`102, 103
`
`2025,
`¶¶30, 35-
`38, 41
`
`2027,
`¶¶17-20,
`24-25, 27-
`30, 33, 38-
`39
`
`802
`
`2029,
`¶¶11-12,
`15, 20, 25-
`35, 37-55,
`57-60
`
`These exhibits appear to be only excerpts of the
`referenced notebooks, the entire contents of which
`should be submitted, in addition to the complete
`testing results of any test referenced therein, in
`fairness to the Petitioner under FRE 106.
`Inadmissible hearsay as to both typed and hand-
`written entries, to the extent the notebook author(s)
`is/are not presented for cross-examination.
`Lack of authentication by a competent witness.
`Inadequate explanation of how tests performed,
`relevance of tests in the field, and how the reported
`data was generated and used
`
`Inadmissible hearsay, as the declarant relies on
`various cited documents and/or other “out-of-court”
`statements for the truth of the matter asserted therein.
`
`Inadmissible hearsay, as the declarant relies on
`various cited documents and/or other “out-of-court”
`statements for the truth of the matter asserted therein.
`
`Inadmissible hearsay, as the declarant relies on
`various cited documents and/or other “out-of-court”
`statements for the truth of the matter asserted therein.
`Argentum further objects to the declarant basing his
`testimony on “interactions with other clinicians” and
`the like to the extent that such clinicians have not
`been identified, have not provided declarations in
`this matter, and have not been made available for
`cross-examination.
`
`Inadmissible hearsay, as the declarant relies on
`various cited documents and/or other “out-of-court”
`statements for the truth of the matter asserted therein.
`
`3
`
`
`
`2031
`
`2032
`
`2033
`
`2034
`
`2035
`
`2036
`
`2037
`
`2038
`
`2039
`
`802
`
`802
`
`802
`
`802
`
`802
`
`802
`
`802
`
`802
`
`802
`
`2040 to
`2058
`
`802, 901; 37
`CFR §42.65
`
`2059
`
`802, 901
`
`2060
`
`802, 901
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness.
`Inadequate explanation of how the reported data was
`generated and used
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness.
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness.
`
`4
`
`
`
`2061
`
`802, 901
`
`2062
`
`802, 901
`
`2063
`
`802, 901
`
`2064
`
`402, 802
`
`2065
`
`402, 802
`
`2066
`
`2067
`
`2068
`
`2069
`
`2070
`
`2071
`
`802
`
`802
`
`802
`
`802
`
`802
`
`802
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness.
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness.
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness.
`
`Lack of relevance, given date of exhibit
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Lack of relevance, given date of exhibit
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`5
`
`
`
`2072
`
`402, 802
`
`2073
`
`2074
`
`2075
`
`802
`
`802
`
`802
`
`2076
`
`402, 802
`
`2077
`
`402, 802
`
`2078
`
`402, 802
`
`2079
`
`402, 802
`
`2080
`
`402, 802
`
`2081
`
`402, 802
`
`Lack of relevance, given date of exhibit
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Lack of relevance, given date of exhibit
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Lack of relevance, given date of exhibit
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Lack of relevance, given date of exhibit
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Lack of relevance, given date of exhibit
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Lack of relevance, given date of exhibit
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Lack of relevance, given date of exhibit
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`6
`
`
`
`2082
`
`106, 402, 802,
`901
`
`2083
`
`402, 802, 901
`
`2084
`
`802
`
`2085
`
`402, 802, 901
`
`2086 to
`2094
`
`402, 802, 901
`
`2095 to
`2101
`
`402, 802, 901
`
`Document is incomplete/illegible
`Lack of relevance, given that the date of exhibit not
`discernible
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness
`
`Lack of relevance, given date of exhibit
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Lack of relevance, given date of exhibit
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness
`
`Lack of relevance absent proof that such
`advertisements/coupons/cards were valid and
`available to relevant consumers
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness
`
`Lack of relevance absent proof that such
`advertisements/coupons/cards were valid and
`available to relevant consumers
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness
`
`7
`
`
`
`2102 to
`2106
`
`402, 802, 901
`
`2107
`
`402, 802, 901
`
`2108
`
`802, 901
`
`2109
`
`802
`
`2110
`
`802, 901
`
`2111
`
`802, 901
`
`2112
`
`802, 901
`
`2113
`
`802, 901
`
`Lack of relevance absent proof that such
`advertisements/coupons/cards were valid and
`available to relevant consumers
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness
`
`Lack of relevance absent proof that such
`advertisements/coupons/cards were valid and
`available to relevant consumers
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness
`
`8
`
`
`
`2114
`
`802, 901
`
`2115
`
`802, 901
`
`2116
`
`2117
`
`802
`
`802
`
`2118
`
`802, 901
`
`2119
`
`802, 901
`
`2120
`
`802, 901
`
`2122
`
`402, 802, 901
`
`2123
`
`2124
`
`802
`
`802
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness
`
`Lack of relevance absent proof of publication/public
`availability
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`Lack of authentication by a competent witness
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`9
`
`
`
`2125
`
`2126
`
`2128
`
`2129
`
`2130
`
`2131
`
`2132
`
`2133
`
`2134
`
`2135
`
`2136
`
`2137
`
`2138
`
`2139
`
`802
`
`802
`
`802
`
`802
`
`802
`
`802
`
`802
`
`802
`
`802
`
`802
`
`802
`
`802
`
`802
`
`802
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`Inadmissible hearsay, as being relied upon for the
`truth of the matter asserted
`
`10
`
`
`
`These objections provide notice to Alcon that Argentum may move under 37
`
`C.F.R. § 42.64(c) to exclude this evidence or the cited portions thereof, as well as
`
`reliance on said objectionable evidence in Alcon’s briefs and/or oral argument.
`
`Argentum is available to meet-and-confer with Alcon to clarify/discuss any of the
`
`above objections should Alcon believe such discussions would be helpful to
`
`resolve Argentum’s objections.
`
`Dated: January 2, 2018
`
`By: /Michael R. Houston/
`Reg. No. 58,486
`Counsel for Petitioner
`
`11
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of the foregoing
`
`PETITIONER’S OBJECTIONS TO EVIDENCE PURSUANT TO
`
`37 C.F.R. § 42.64(b)(1) was served on January 2, 2018, on Counsel for Patent
`
`Owner via electronic mail to the following:
`
`dkrinsky@wc.com
`csuarez@wc.com
`aperlman@wc.com
`cmandernach@wc.com
`azolan@wc.com
`TravZ-IPR@wc.com
`
`Dated: January 2, 2018
`
`By: /Michael R. Houston/
`Reg. No. 58,486
`Counsel for Petitioner
`
`12
`
`
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