`
`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’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 OPPOSITION TO
`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
`
`
`
`
`

`

`
`
`I. 
`
`
`
`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`TABLE OF CONTENTS
`
`Page
`PATENT OWNER’S ANTEDATION EVIDENCE IS ADMISSIBLE. ........ 1 
`
`A. 
`
`Exhibits 2001-2009 Are Properly Authenticated And Are
`Accurate Copies Of Patent Owner’s Official Records. ......................... 1 
`
`1. 
`
`2. 
`
`Exhibits 2001-2009 are properly authenticated. ......................... 1 
`
`Petitioner’s best evidence objection is baseless. ......................... 2 
`
`B. 
`
`The Lab Notebooks (Exhibits 2001-2009) Are Properly
`Admitted As Business Records Under Rules 902(11) And
`803(6). ................................................................................................... 6 
`
`C. 
`
`Exhibits 2014 And 2015 Are Properly Admitted. ................................. 9 
`
`D.  Dr. Carter’s, Dr. Presta’s, And Mr. Brady’s Testimony Is
`Properly Admitted (Exhibits 2016-2018). ........................................... 10 
`
`PETITIONER’S RELEVANCE ARGUMENTS FAIL. ............................... 11 
`
`PETITIONER’S REMAINING CHALLENGES ARE WITHOUT
`MERIT. .......................................................................................................... 13 
`
`II. 
`
`III. 
`
`A. 
`
`B. 
`
`C. 
`
`D. 
`
`Exhibits 2055 And 2061 Are Admissible. .......................................... 13 
`
`Exhibit 2029 Is Admissible. ................................................................ 13 
`
`Exhibit 2062 Is Admissible. ................................................................ 14 
`
`Exhibit 2041 Is Admissible. ................................................................ 15 
`
`
`
`
`
`i
`
`

`

`
`
`
`
`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`
`Cases
`Actelion Pharms. Ltd. v. ICOS Corp., IPR2015-00561, Paper 50 (Aug.
`3, 2016) .......................................................................................................... 11
`Apple Inc. v. DSS Tech. Mgmt., Inc., IPR2015-00369, Paper 40 (June
`17, 2016) ........................................................................................................ 11
`Ashland Oil, Inc., v. Delta Resins & Refractories, Inc., 776 F.2d 281
`(Fed. Cir. 1985) .............................................................................................. 12
`Bouygues Telecom, S.A. v. Tekelec, 472 F. Supp. 2d 722 (E.D.N.C.
`2007) ............................................................................................................. 14
`Dura Auto. Sys. of Indiana, Inc. v. CTS Corp., 285 F.3d 609 (7th Cir.
`2002) ............................................................................................................. 14
`Knorr v. Pearson, 671 F.2d 1368 (C.C.P.A. 1982) ............................................. 8, 10
`LG Chem, Ltd. v. Celgard, LLC, IPR2014-00692, Paper 76 (Oct. 5,
`2015) ........................................................................................................ 10, 11
`United States v. Franks, 939 F.2d 600 (8th Cir. 1991) .............................................. 7
`United States v. Komsa, 767 F.3d 151 (2d Cir. 2014) ............................................... 7
`United States v. Reyes, 157 F.3d 949 (2d Cir. 1998) ................................................. 7
`Statutes, Rules, and Regulations
`37 C.F.R. § 42.20(c) ................................................................................................. 10
`37 C.F.R. § 42.64(c) ................................................................................................... 3
`Fed. R. Evid. 803(6) ..........................................................................................passim
`Fed. R. Evid. 807 ..................................................................................................... 14
`Fed. R. Evid. 901 ..............................................................................................passim
`Fed. R. Evid. 1002 ................................................................................................. 2, 3
`
`ii
`
`

`

`
`
`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`
`Fed. R. Evid. 1003 ..................................................................................................... 3
`Patent Trial Practice Guide, 77 Fed. Reg. 48,756 (Aug. 14, 2012) ............... 3, 8, 15
`Treatises
`30B Fed. Prac. & Proc. Evid. § 6862 (2018 ed.) ....................................................... 7
`1 Weinstein’s Evidence Manual § 9.02 (2018) ......................................................... 4
`1 Weinstein’s Evidence Manual § 16.07 (2018) ....................................................... 7
`
`
`
`iii
`
`

`

`
`I.
`
`
`
`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`PATENT OWNER’S ANTEDATION EVIDENCE IS ADMISSIBLE.
`A. Exhibits 2001-2009 Are Properly Authenticated And Are
`Accurate Copies Of Patent Owner’s Official Records.
`1.
`Exhibits 2001-2009 are properly authenticated.
`The core of Petitioner’s objection is that Exhibits 2001 to 2009 are copies of
`
`Patent Owner’s lab notebooks and there is a second set of copies of those lab
`
`notebooks not in evidence. But the existence of a second copy of the underlying
`
`notebooks in the form of a microfilm is not a basis to exclude the high-resolution
`
`color scans submitted as Exhibits 2001-2009. As explained by Patent Owner’s
`
`records custodian, Ms. Loeffler, the original lab notebooks are Genentech’s official
`
`record of the research (Ex. 1141 at 42:22-25), and Exhibits 2001-2009 are copies
`
`of the original notebooks (Ex. 2019, ¶4). The microfilms are also copies of the
`
`original notebooks and exist for “disaster recovery” purposes. (Ex. 1141 at 42:13-
`
`21.) But that does not make a high-resolution, color scan of the same notebook
`
`inadmissible. Indeed, Ms. Loeffler testified that Genentech uses the color scans for
`
`the same purpose as the microfilms. (Id. at 42:16-43:13.)
`
`Specifically, Petitioner argues that Patent Owner has not authenticated
`
`Exhibits 2001-2006 because the authors of those lab notebooks could not
`
`definitively say which copy was submitted—a microfilm copy or a high-resolution
`
`scan copy. (Paper 63 at 2-3.) As an initial matter, the authors’ inability to identify
`
`whether the exhibits were the microfilmed notebooks or the scans only proves that
`
`1
`
`

`

`
`
`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`
`there are no substantive differences between the two copies. And whether the
`
`documents are microfilms or scans is beside the point; regardless of how the copies
`
`were made, the authors of the documents testified that the exhibits are copies of
`
`their notebooks. (Ex. 2016, ¶¶10-11; Ex. 2017 ¶¶11-16, Ex. 2018, ¶¶8-9.) That is
`
`all that is required to authenticate the documents. See Fed. R. Evid. 901(b)(1).
`
`Moreover, Patent Owner’s records custodian (who is in the best position to
`
`address Patent Owner’s records-keeping practices) confirmed that the exhibits are
`
`the scanned copies of the lab notebooks and that those scans were kept in the
`
`ordinary course of Genentech’s business. (Ex. 1141 at 15:1-12, 43:8-44:4; Ex.
`
`2019, ¶¶4-7; see also infra pp. 6-8). That is an independent basis to establish their
`
`authenticity. Fed. R. Evid. 902(11); Fed. R. Evid. 803(6).
`
`2.
`Petitioner’s best evidence objection is baseless.
`Petitioner’s argument that Exhibits 2001-2009 should be excluded under
`
`Federal Rule of Evidence 1002 is procedurally improper and without merit.
`
`Petitioner argues that these exhibits should be excluded because they are scanned
`
`copies created in 2016, but there are also microfilmed copies that were created
`
`earlier in time. (Paper 63 at 4.) However, Petitioner failed to preserve an
`
`evidentiary objection under Rule 1002. (Paper 21; Paper 40.) Petitioner states that
`
`it “did not appreciate the identity of Exhibits 2001-2009 until the depositions of
`
`Patent Owner’s witnesses.” (Paper 63 (citing Ex. 1141, 7:10-8:7; 8:23-10:2).) But
`
`2
`
`

`

`
`
`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`
`the identity of Exhibits 2001-2009 was known when Patent Owner filed its
`
`Preliminary Response. See, e.g., Ex. 1200, ¶7 (“Exhibits 2001-2009 were initially
`
`microfilmed approximately one year after they were issued and then scanned in
`
`high-resolution color in or around November 2016.”). For that reason alone,
`
`Petitioner’s challenge to this evidence should be denied. See 37 C.F.R. § 42.64(c);
`
`Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,767 (Aug. 14, 2012) (motion
`
`must “[i]dentify where in the record the objection originally was made”).
`
`On the merits, Petitioner’s argument fares no better. Patent Owner’s
`
`testimony that the scanned copies of the lab notebooks submitted as Exhibits 2001-
`
`2009 are maintained in the same system and serve the same business purpose as
`
`the microfilmed copies establishes that they are no less reliable than the
`
`microfilmed copies. (Ex. 1141, 15:1-12, 43:8-44:4; Ex. 2019, ¶¶4-7; see also (Exs.
`
`2016, ¶¶1; Ex. 2017 ¶¶11-16, Ex. 2018, ¶¶8-9).). As a result, Petitioner’s
`
`challenge under Federal Rule of Evidence 1002 fails. Rule 1002 does not, as
`
`Petitioner seems to suggest (Paper 63 at 4), require definitive proof that the copies
`
`submitted are identical to the original documents. Indeed, Rule 1003 provides that
`
`“[a] duplicate is admissible to the same extent as the original unless a genuine
`
`question is raised about the original’s authenticity.” Fed. R. Evid. 1003. But “the
`
`mere supposition that the original may have been altered should not prevent
`
`3
`
`

`

`
`
`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`
`introduction of the duplicate without some indication that the original was altered.”
`
`1 Weinstein’s Evidence Manual § 9.02 (2018).
`
`In attempt to manufacture an issue as to the “reliability” of the lab
`
`notebooks, Petitioner relies on the unsubstantiated representation of Pfizer’s
`
`counsel in co-pending IPR2017-01488, -01489 to argue that there are differences
`
`between the microfilms and color scans. (Paper 63 at 3 n.1.) But there is no
`
`factual basis to substantiate that allegation, and Petitioner’s suggestion that there
`
`are differences between the microfilms and the color scans is inconsistent with
`
`what actually occurred.
`
`Patent Owner made the microfilms available to Petitioners1 at Ms. Loeffler’s
`
`deposition because Petitioners had asked questions about the microfilms during
`
`prior depositions. (E.g., Ex. 1140 at 130:23-132:20, 136:5-138:7, 173:15-173:20;
`
`Ex. 1139 at 17:17-18:5.) At the outset of Ms. Loeffler’s deposition, Petitioners
`
`objected that they had inadequate time to review the microfilms and stated that
`
`they had identified three purported discrepancies between the microfilms and the
`
`color scans (without identifying what those alleged discrepancies were). (Ex. 1141
`
`at 7:10-8:7, 8:23-9:18; id. at 9:20-10:2.) Patent Owner offered to give Petitioners
`
`
`1 Patent Owner’s witnesses were deposed jointly in IPR2017-01373, -01374, -
`
`01488, -01489. “Petitioners” refers collectively to the petitioners in those IPRs.
`
`4
`
`

`

`
`
`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`
`more time to review the microfilms and disputed that the content of the microfilms
`
`was any different from the color scans. (Id. at 8:8-22.) But if there were
`
`differences, Patent Owner noted that the microfilms were available to Petitioners if
`
`they wished to cross-examine Ms. Loeffler concerning them. (Id.)
`
`Petitioners then proceeded to take Ms. Loeffler’s deposition and did not ask
`
`about the microfilms, let alone any purported discrepancies between the microfilms
`
`and the color scans. At the end of Ms. Loeffler’s deposition, counsel for Patent
`
`Owner retained custody of the microfilms, since (i) they were not used at the
`
`deposition; (ii) Petitioner objected to their use in these proceedings; and (iii) they
`
`are confidential Genentech documents that were not branded as such. (Ex. 1141 at
`
`44:12-46:6.). And Petitioner has made no request that Patent Owner provide the
`
`microfilms. To the extent Petitioner believed there were differences (there is no
`
`evidence of anything of the sort), Petitioner, through co-counsel, had the
`
`opportunity to ask Ms. Loeffler about them or introduce the microfilms into
`
`evidence. (Id. at 7:10-9:18, 44:12-46:6.) Petitioner may not now capitalize on its
`
`strategic decision not to identify or address the alleged differences or cross-
`
`examine Ms. Loeffler about them. If anything, the fact that Petitioner chose not to
`
`ask Ms. Loeffler about the microfilms or later seek to obtain copies from Patent
`
`Owner confirms that there are, in fact, no differences. But if Petitioner wants the
`
`microfilms, Patent Owner is happy to file them as exhibits in this proceeding.
`
`5
`
`

`

`
`
`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`At bottom, Petitioner offers nothing to substantiate its unsupported
`
`
`
`allegation that there are differences between the microfilms and color scans.
`
`Petitioner’s unsupported argument that nine lab notebooks were systematically
`
`altered is frivolous and provides no reason to exclude Exhibits 2001-2009 as an
`
`evidentiary matter. However, to the extent Petitioner wishes to place the
`
`inventors’ credibility at issue, Patent Owner is happy to make Dr. Carter available
`
`to testify live at the July 16, 2018 hearing.
`
`B.
`
`The Lab Notebooks (Exhibits 2001-2009) Are Properly Admitted
`As Business Records Under Rules 902(11) And 803(6).
`Ms. Loeffler, Patent Owner’s records custodian, authenticated Exhibits
`
`2001-2009 as business records under Federal Rules of Evidence 902(11) and
`
`803(6). Ms. Loeffler testified that Exhibits 2001-2009 are “true and authentic
`
`copies … of Genentech laboratory notebooks.” (Ex. 2019, ¶4.) She also testified
`
`that (1) it was the regular practice of Genentech’s personnel to create lab
`
`notebooks “at or near the time of the recorded act, event, condition, or opinion
`
`occurred”; (2) “[s]uch records would only be made by someone with knowledge or
`
`from information transmitted by someone with knowledge”; (3) “[i]t was the
`
`general practice of Genentech’s personnel to date such documents as of the date
`
`the record was created or modified”; and (4) the lab notebooks were generated
`
`during the regular course of Genentech’s business. (Id., ¶6; see also Ex. 1141 at
`
`6
`
`

`

`
`
`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`
`39:9-40:21, 43:15-44:4.) That is all that is required to authenticate the documents
`
`and establish their admissibility as business records. See Fed. R. Evid. 902(11);
`
`Fed. R. Evid. 803(6); 30B Fed. Prac. & Proc. Evid. § 6862 (2018 ed.).
`
`Petitioner’s arguments with respect to the introduction of Exhibits 2007-
`
`2009 under Rule 803(6) are focused on Ms. Loeffler’s purported lack of personal
`
`knowledge regarding these specific lab notebooks. (Paper 63 at 4.) But Ms.
`
`Loeffler, as a records custodian, need not have personal knowledge of how each
`
`lab notebook was created or maintained in order to satisfy Rule 803(6). See, e.g.,
`
`U.S. v. Reyes, 157 F.3d 949, 952 (2d Cir. 1998) (custodian who testifies as to the
`
`authenticity of a record need not have firsthand knowledge of the creation of the
`
`record to satisfy Rule 803(6)); 1 Weinstein’s Evidence Manual § 16.07 (2018). All
`
`the rules require is that she is familiar with the record-keeping system of
`
`Genentech and knows how Genentech’s records were created and maintained. See
`
`U.S. v. Komsa, 767 F.3d 151, 156 (2d Cir. 2014); Reyes, 157 F.3d at 952. She
`
`testified as such here. (Ex. 2019, ¶¶3-7; Ex. 1141 at 11:11-12:3, 16:20-17:19.)
`
`Petitioner’s contrary rule requiring the testimony of the person with personal
`
`knowledge of the preparation and maintenance of the particular records introduced
`
`“would eviscerate the business records exception.” U.S. v. Franks, 939 F.2d 600,
`
`602 (8th Cir. 1991). Thus, Ms. Loeffler’s alleged “lack of personal knowledge” of
`
`7
`
`

`

`
`
`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`
`the particular notebooks here is not a basis to exclude her testimony, or the lab
`
`notebooks she testified about.
`
`Petitioner argues that Exhibits 2001-2009 do not fall within the business
`
`records exception because “the source of the information … indicates a lack of
`
`trustworthiness.” (Paper 63 at 5.) This single throw-away statement is insufficient
`
`to meet Petitioner’s burden of showing that the lab notebooks are untrustworthy.
`
`See Fed. R. Evid. 803(6)(E) (burden is on “opponent” of business record to show
`
`untrustworthiness); Patent Trial Practice Guide, 77 Fed. Reg. 48,765 at 48,767
`
`(“A motion to exclude must … [e]xplain each objection.”). To the extent
`
`Petitioner contends that Exhibits 2001-2009 are untrustworthy because they are
`
`scanned copies created in 2016, there is no basis for that assertion for the reasons
`
`discussed above.
`
`Lastly, irrespective of their status as business records, the lab notebooks are,
`
`at a minimum, admissible for what they describe and are relevant for their
`
`corroborative evidentiary value, independent of their truth. See Knorr v. Pearson,
`
`671 F.2d 1368, 1372-73 (C.C.P.A. 1982) (act of communicating ideas supporting
`
`conception has independent legal significance beyond the truth of statements.)
`
`Their relevance as corroborating evidence is independent of any hearsay purpose.
`
`8
`
`

`

`
`
`
`
`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`C. Exhibits 2014 And 2015 Are Properly Admitted.
`Contrary to Petitioner’s assertion (Paper 63 at 5), Patent Owner presented
`
`information to establish the authenticity of Exhibits 2014 and 2015. Dr. Carter
`
`testified that Exhibit 2014 is a report prepared contemporaneously and in the
`
`ordinary course of business by the team working on the 4D5 humanization project.
`
`(Ex. 2017, ¶¶14-16, 56.) As he explained, the document reflects the work
`
`performed on the humanization of 4D5 by May 14, 1990. (Id.) It includes, for
`
`example, summaries of the work performed (or to be performed) and described by
`
`Tim Hotaling and Ann Rowland in their lab notebooks. (Compare, e.g., Ex. 2015
`
`at 1, with Ex. 2007 at 5-7, and Ex. 2008 at 5-6.) It therefore bears sufficient
`
`indicia of reliability and is properly admitted under Federal Rule of Evidence 901.
`
`Likewise, Dr. Carter identified Exhibit 2015 as “minutes from an August 8, 1990
`
`RRC presentation [he] attended.” (Ex. 2017, ¶78; id., ¶¶14-16.) As an attendee of
`
`the meeting, Dr. Carter has personal knowledge of what was discussed at that
`
`meeting and can therefore properly introduce the document under Federal Rule of
`
`Evidence 901. Dr. Carter also established that Exhibits 2014 and 2015 are
`
`business records under Rule 803(6). (Ex. 2017, ¶¶14-16.)
`
`Additionally, to the extent Exhibits 2014-2015 do not qualify as business
`
`records under Federal Rule of Evidence 803(6), they are not hearsay because they
`
`have independent legal significance. For example, Exhibit 2014 demonstrates that
`
`9
`
`

`

`
`
`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`
`the inventors conveyed ideas supporting conception to others and were working to
`
`reduce the invention to practice. See Knorr, 671 F.2d at 1372-73. Likewise,
`
`Exhibit 2015 is relevant because it demonstrates that the inventors’
`
`accomplishment of reducing their invention to practice was acknowledged by
`
`company executives. (Ex. 2015 at 1.)
`
`D. Dr. Carter’s, Dr. Presta’s, And Mr. Brady’s Testimony Is
`Properly Admitted (Exhibits 2016-2018).
`Because the underlying documents submitted with the declarations are
`
`admissible, Petitioner has not shown that portions of Exhibits 2016-2018 citing
`
`those documents should be excluded. (Supra pp. 1-10; cf. Paper 63 at 6.)
`
`Moreover, Petitioner’s bald statement that “[t]he is no evidence in the record that
`
`Dr. Presta had personal knowledge of Dr. Carter’s knowledge or activities”
`
`discussed in the challenged paragraphs is insufficient to carry Petitioner’s burden.
`
`See 37 C.F.R. § 42.20(c). As a colleague collaborating with Dr. Carter, Dr. Presta
`
`had personal knowledge of what he and Dr. Carter were collectively aware of (Ex.
`
`2016, ¶23) and Dr. Carter’s work on the project (id. ¶¶49-50). Indeed, the record
`
`shows that the inventors were in close communication. (E.g., Ex. 2010-2011.) In
`
`any event, Petitioner’s objection is not an adequate reason to exclude. LG Chem,
`
`Ltd. v. Celgard, LLC, IPR2014-00692, Paper 76 at 43 (Oct. 5, 2015) (failure to
`
`expressly explain basis for personal knowledge of statements is not an adequate
`
`10
`
`

`

`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`
`
`
`basis for exclusion).
`
`With respect to Exhibit 2018, Mr. Brady expressly stated that he has
`
`knowledge of Ms. Carver’s activities described in ¶21 and the basis for that
`
`knowledge. (Ex. 2018, ¶21 (“I know that Ms. Carver ran this bioassay
`
`because….”).) Likewise, Mr. Brady explains in ¶23 that he requested that
`
`Ms. Carver perform a certain bioassay and he was able to confirm she completed
`
`the bioassay by comparing his notebook with hers. (Ex. 2018, ¶23.) At least
`
`because “Petitioner provides no clear basis for refuting” Mr. Brady’s statements,
`
`the motion should be denied. LG Chem, Paper 76 at 43.
`
`II.
`
`PETITIONER’S RELEVANCE ARGUMENTS FAIL.
`Petitioner’s relevance arguments should be rejected because they are not the
`
`proper subject of a motion to exclude. “Arguments concerning the relevance of
`
`[exhibits] in view of their late or uncertain dates concern the weight we should
`
`accord to those exhibits, rather than their admissibility.” Apple Inc. v. DSS Tech.
`
`Mgmt., Inc., IPR2015-00369, Paper 40 at 36 (June 17, 2016). As a result, a
`
`“motion to exclude … is not an appropriate mechanism for challenging the
`
`sufficiency of evidence or the proper weight that should be afforded an argument.”
`
`Id.; see also Actelion Pharms. Ltd. v. ICOS Corp., IPR2015-00561, Paper 50 at 36
`
`(Aug. 3, 2016) (“A post-filing date publication is not automatically excluded from
`
`consideration as irrelevant.”). Each of the purported post-priority date exhibits
`
`11
`
`

`

`
`
`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`
`identified by Petitioner has independent relevance:
`
`Exhibit 2021 is relevant at least because it, in combination with Dr. Presta’s
`
`Declaration (Ex. 2016, ¶52), explains that the invention was used to develop
`
`Avastin®, which is relevant to secondary considerations such as commercial
`
`success. (See, e.g., Paper 37 at 66.)
`
`Exhibit 2053 is relevant at least because it supports the conclusion that
`
`Herceptin® was the first humanized monoclonal antibody approved to treat cancer.
`
`(Paper 37 at 33 n.6 (citing Ex. 2053 at 56).)
`
`Exhibit 2059 is relevant at least because it describes the difficulties
`
`associated with developing antibody-based treatments prior to the filing of the ’213
`
`patent. (See, e.g., Paper 37 at 33 n.6; Ex. 2039 at 191:14-193:7.) Even if not
`
`technically prior art, Ex. 2059 is still relevant to show that even in 1992, skilled
`
`artisans were still experiencing difficulties. See, e.g., Ashland Oil, Inc., v. Delta
`
`Resins & Refractories, Inc., 776 F.2d 281, 302 (Fed. Cir. 1985) (references that are
`
`“technically not prior art” can be “indicative of what was generally known during
`
`the relevant time frame to persons of ordinary skill in the [] art”).
`
`Exhibit 2060 is relevant at least because it teaches that as late as 1993,
`
`skilled artisans doubted that developing antibody-based treatments would be
`
`effective. See Ashland Oil, 776 F.2d at 302.
`
`12
`
`

`

`
`
`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`Because these documents are relevant for the reasons described above, and
`
`
`
`Petitioner has not articulated any prejudice from the admission of these documents,
`
`Petitioner’s motion to exclude these documents should be denied.
`
`III. PETITIONER’S REMAINING CHALLENGES ARE WITHOUT
`MERIT.
`A. Exhibits 2055 And 2061 Are Admissible.
`Petitioner objects to several exhibits as irrelevant because none is
`
`specifically cited in Patent Owner’s Response. (Paper 63 at 10-11.) However,
`
`Exhibits 2055 and 2061 are addressed in Dr. Riechmann’s and Dr. Leonard’s
`
`deposition testimony (Ex. 2039 at 198:5-201:1, 246:10-269:22; Ex. 2040 at 94:14-
`
`103:9), provide relevant context for their testimony, and are relevant to assess their
`
`credibility. Patent Owner withdraws Exhibits 2042-2044 which were not
`
`addressed by any of the witnesses and the Board need not consider in order to
`
`reject Petitioner’s obviousness challenge.
`
`B.
`Exhibit 2029 Is Admissible.
`Petitioner challenges the admissibility of Ex. 2029 under Federal Rules of
`
`Evidence 901, 803, but has provided no specific reason to doubt the document’s
`
`authenticity or trustworthiness. (Paper 63 at 11-12.) Exhibit 2029 is as an excerpt
`
`from Roche, Inc’s 2016 Finance report, which includes the first page of the report
`
`identifying the document and two consecutive pages depicting, e.g., financial data
`
`13
`
`

`

`
`
`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`
`for Herceptin®. (Ex. 2029 at 2.) Exhibit 2029 is properly authenticated because it
`
`bears all the hallmarks of a financial report. See Fed. R. Evid. 901(b)(4).
`
`With respect to Petitioner’s hearsay objection, Exhibit 2029 is admissible
`
`under Federal Rule of Evidence 807 at least because it has circumstantial
`
`guarantees of trustworthiness because it is a disclosure document, which Roche
`
`holds out to investors as a reliable statement of the company’s financial
`
`performance. See https://www.roche.com/dam/jcr:6ddcec16-c658-48b2-82b5-
`
`4ed426c14ac8/en/fb16e.pdf.
`
`Lastly, Petitioner suggests that the document is improper because it is only
`
`an excerpt of the 2016 Finance Report, but Petitioner has never before objected to
`
`the completeness of the document and doing so now where Patent Owner does not
`
`have the opportunity to cure the objection unfairly prejudices Patent Owner.
`
`C. Exhibit 2062 Is Admissible.
`Exhibit 2062 is a redline comparison between the declarations submitted by
`
`Petitioner’s expert, Dr. Riechmann, in this matter and the declaration submitted by
`
`Dr. Padlan submitted in IPR2016-01693 and IPR2016-01694. Exhibit 2062 is
`
`relevant to assess the credibility of Dr. Riechmann. The extent to which an expert
`
`copied the report of another expert from a different litigation directly bears on the
`
`reliability of the expert’s opinions. See, e.g., Dura Auto. Sys. of Indiana, Inc. v.
`
`CTS Corp., 285 F.3d 609, 614 (7th Cir. 2002); Bouygues Telecom, S.A. v. Tekelec,
`
`14
`
`

`

`
`
`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`
`472 F. Supp. 2d 722, 729 (E.D.N.C. 2007) (“[T]he wholesale adoption of the
`
`opinion of another expert verbatim cannot be within the intent of Fed. R. Evid.
`
`702.”). Given that Petitioner has not challenged the accuracy of the comparison,
`
`there is no prejudice to Petitioner.
`
`D. Exhibit 2041 Is Admissible.
`Petitioner states that “Dr. Wilson does not provide any citations or support
`
`for the statements made” in certain paragraphs, and requests the Board exclude
`
`those paragraphs. (Paper 63 at 13.) Petitioner never describes the contents of
`
`those paragraphs, where they were relied on by Patent Owner, how they relate to
`
`the Board’s determination of patentability here, why the particular statements
`
`require citations to evidence, or how the statements prejudice Petitioner. This is
`
`reason alone to deny the Motion. Patent Trial Practice Guide, 77 Fed. Reg.
`
`48,765 at 48,767 (motion to exclude must “[i]dentify where in the record the
`
`evidence sought to be excluded was relied upon by an opponent” and “[e]xplain
`
`why the evidence is not admissible”). Dr. Wilson explained that his opinion is
`
`based on his review of the materials submitted in the Petition, the materials
`
`submitted by Patent Owner, and his scientific knowledge as of June 1991. (See Ex.
`
`2041, ¶¶3-5, Exhibit B).) Petitioner has not shown why this is insufficient to
`
`support the challenged paragraphs.
`
`
`
`15
`
`

`

`
`
`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`
`Respectfully submitted,
`
`
`Date: July 3, 2018
`
`
`
`By:
`
`/David L. Cavanaugh/
`David L. Cavanaugh
`Reg. No. 36,476
`Wilmer Cutler Pickering Hale and Dorr LLP
`1875 Pennsylvania Avenue NW
`Washington, DC 20006
`202-663-6025
`
`16
`
`

`

`
`
`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`
`
`
`
`CERTIFICATE OF SERVICE
`I hereby certify that, on July 3, 2018, I caused a true and correct copy of the
`following materials:
`
` 
`
` Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`
`to be served via electronic mail on the following attorneys of record:
`
`Cynthia Lambert Hardman
`GOODWIN PROCTER LLP
`chardman@goodwinlaw.com
`620 Eighth Avenue, New York, NY 10018
`
`Robert V. Cerwinski
`GOODWIN PROCTER LLP
`rcerwinski@goodwinlaw.com
`620 Eighth Avenue, New York, NY 10018
`
`Elizabeth Holland
`GOODWIN PROCTER LLP
`eholland@goodwinlaw.com
`620 Eighth Avenue, New York, NY 10018
`
`Linnea P. Cipriano
`GOODWIN PROCTER LLP
`lcipriano@goodwinlaw.com
`620 Eighth Avenue, New York, NY 10018
`
`Sarah J. Fischer
`GOODWIN PROCTER LLP
`sfischer@goodwinlaw.com
`100 Northern Avenue, Boston, MA 02110
`
`1
`
`
`
`
`
`
`
`
`

`

`
`
`
`
`
`IPR2017-01373
`
`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
`
`/Lauren V. Blakely/
`Lauren V. Blakely
`Reg. No. 70,247
`Wilmer Cutler Pickering Hale & Dorr LLP
`950 Page Mill Road
`Palo Alto, CA 94304
`(650) 600-5039
`
`2
`
`