`Patent Owner’s Motion to Exclude
`
`
`
`Adam R. Brausa (Reg No. 60,287)
`Daralyn J. Durie (Pro Hac Vice)
`DURIE TANGRI LLP
`217 Leidesdorff Street
`San Francisco, CA 94111
`
`
`
`
`
`
`
`
`
`
`
`Filed on behalf of Patent Owner Genentech, Inc. by:
`
`David L. Cavanaugh (Reg. No. 36,476)
`Lauren V. Blakely (Reg. No. 70,247)
`Robert J. Gunther, Jr. (Pro Hac Vice)
`Lisa J. Pirozzolo (Pro Hac Vice)
`
`Kevin S. Prussia (Pro Hac Vice)
`
`Andrew J. Danford (Pro Hac Vice)
`
`WILMER CUTLER PICKERING
`
` HALE AND DORR LLP
`1875 Pennsylvania Ave., NW
`
`Washington, DC 20006
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________________________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________________________________
`CELLTRION, INC.,
`Petitioner,
`
`v.
`
`GENENTECH, INC.,
`Patent Owner.
`____________________________________________
`Case IPR2017-01373
`U.S. Patent No. 6,407,213
`____________________________________________
`
`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64
`
`
`
`
`
`
`
`
`
`
`
`
`IPR2017-01373
`Patent Owner’s Motion to Exclude
`
`
`
`Patent Owner has moved to strike Exhibit 1193 and the associated
`
`arguments and testimony that rely on this exhibit, including the first full paragraph
`
`of pages 15 and 21 of Petitioner’s Reply (Paper 54), Ex. 1143 ¶30, and Ex. 1138 at
`
`176:25 to 178:23. As explained in Patent Owner’s contemporaneously filed
`
`Motion to Strike, this evidence and argument is new and improper. To the extent
`
`the Board agrees, it should also exclude these new arguments and evidence under
`
`Federal Rules of Evidence 401 and 402 because they are not relevant to any of the
`
`instituted grounds, for which Petitioner was obligated to identify all of the
`
`supporting evidence with particularity in the Petition. See 35 U.S.C. § 312(a); see
`
`also 37 C.F.R. § 42.23(b). Moreover, because Patent Owner has been denied any
`
`meaningful opportunity to substantively respond to Petitioner’s positions, any
`
`alleged relevance is substantially outweighed by unfair prejudice to Patent Owner,
`
`and the evidence and argument should be excluded under Federal Rule of Evidence
`
`403. 1
`
`
`1 Among other grounds, Patent Owner objected to Ex. 1193 as improper new
`
`evidence and irrelevant and misleading under Fed. R. Evid. 401, 402, 403 and 37
`
`C.F.R. § 42.23(b). (Paper 55 at 2.) Patent Owner objected to Ex. 1143 ¶30 as
`
`improper for raising new arguments in reply, and under Fed. R. Evid. 702, 703,
`
`705, 403; 77 Fed. Reg. at 48,763; 37 C.F.R. § 42.65, and as being misleading
`
`1
`
`
`
`
`
`
`Date: June 22, 2018
`
`
`
`
`
`
`
`
`
`IPR2017-01373
`Patent Owner’s Motion to Exclude
`
`
`
`Respectfully submitted,
`
`/David L. Cavanaugh/
`By:
`David L. Cavanaugh
`Reg. No. 36,476
`Wilmer Cutler Pickering Hale and Dorr LLP
`1875 Pennsylvania Avenue NW
`Washington, DC 20006
`202-663-6025
`
`
`and/or confusing under Fed. R. Evid. 403. (Id. at 7). Patent Owner objected to
`
`Ex. 1138 as containing testimony elicited from questions outside the scope of the
`
`witness’s direct testimony, and as being misleading, confusing, unfairly
`
`prejudicial, and irrelevant under Fed. R. Evid. 401, 402, 403. (Id. at 4; Ex. 1138 at
`
`177:4-6 (objecting to questions pertaining to Ex. 1193).)
`
`2
`
`