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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`Celltrion, Inc.
`Petitioner,
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`v.
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`Genentech, Inc.
`Patent Owner
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`Patent No. 6,407,213
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`Inter Partes Review No. IPR2017-01373
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`PETITIONER CELLTRION’S OPPOSITION TO PATENT OWNER’S
`MOTION TO EXCLUDE EVIDENCE
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`Patent Owner has sought to keep the Board from considering Exhibit 1193
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`in two separate motions. The present one, a motion to exclude, is improper, since
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`it challenges Exhibit 1193 as untimely and outside the scope of a reply brief, and
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`not on any evidentiary ground. Motions to exclude are reserved for challenging
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`the admissibility of evidence under the Federal Rules of Evidence, not for arguing
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`untimeliness and improper scope. See, e.g., Liberty Mutual Ins. Co. v. Progressive
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`Casualty Ins. Co., CBM2012-00002, Paper 66, at 62 (P.T.A.B. Jan. 23, 2014)
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`(“[W]hile a motion to exclude may raise issues related to admissibility of evidence,
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`it is not . . . a mechanism to argue that a reply contains new arguments or relies on
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`evidence necessary to make out a prima facie case.”); Altaire Pharms. Inc. v.
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`Paragon Bioteck, Inc., PGR2015-00011, Paper 38, at 2 (P.T.A.B. May 18, 2016).
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`While Patent Owner purports to found its motion on Federal Rules of Evidence
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`401 and 402, the substance of Patent Owner’s argument is that Petitioner’s citation
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`of Exhibit 1193 did not comply with 35 U.S.C. § 312(a), which relates to the
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`requirements for a petition, or 7 C.F.R. § 42.23(b), which relates to the permissible
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`scope of reply papers. Similarly, Patent Owner’s argument regarding Federal Rule
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`of Evidence 403 asserts only that Exhibit 1193 was untimely, not any evidentiary
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`defect. These arguments are not properly raised in a motion to exclude.
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`Patent Owner has separately filed a motion to strike Exhibit 1193 on the
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`ground of timeliness, and Petitioner will address Patent Owner’s arguments in an
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`opposition to that motion. Since that is the appropriate procedural mechanism for
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`challenging timeliness, the present motion to exclude should be denied and the
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`issue decided in Patent Owner’s motion to strike.
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`On the merits, to the extent the Board considers Patent Owner’s objections
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`under Rules 401, 402, and 403, Exhibit 1193 is highly relevant to the knowledge of
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`a POSA regarding the use of human consensus sequences in humanized antibodies
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`at the time the claimed subject matter was allegedly invented. As will be
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`addressed in Petitioner’s Opposition to Patent Owner’s Motion to Strike, Petitioner
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`properly raised Exhibit 1193 in its Reply. Therefore, the relevance of this exhibit
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`is not outweighed by unfair prejudice. For these additional reasons, Exhibit 1193
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`should not be excluded from this proceeding.
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`Dated: July 3, 2018
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`Respectfully submitted,
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`/Cynthia Lambert Hardman/
`Cynthia Lambert Hardman (Reg. No. 53,179)
`Elizabeth J. Holland (Reg. No. 47,657)
`Robert V. Cerwinski (admitted pro hac vice)
`Linnea P. Cipriano (Reg. No. 67,729)
`GOODWIN PROCTER LLP
`The New York Times Building
`620 Eighth Avenue
`New York, NY 10018
`(212) 813-8800 (telephone)
`(212) 355-3333 (facsimile)
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`Sarah J. Fischer (Reg. No. 74,104)
`GOODWIN PROCTER LLP
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`100 Northern Avenue
`Boston, MA, 02210
`(617) 570-3908 (telephone)
`(617) 801-8991 (facsimile)
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`Counsel for Petitioner
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`CERTIFICATE OF SERVICE
`Pursuant to 37 C.F.R. § 42.6(e), I certify that on this 3rd day of July, 2018, I
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`caused a copy of this PETITIONER CELLTRION’S OPPOSITION TO PATENT
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`OWNER’S MOTION TO EXCLUDE EVIDENCE by email on the lead and back
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`up counsel for Patent Owners at:
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`David Cavanaugh (David.Cavanaugh@wilmerhale.com)
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`Lauren V. Blakely (lauren.blakely@wilmerhale.com)
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`Robert Gunther (Robert.Gunther@wilmerhale.com)
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`Adam Brausa (abrausa@durietangri.com)
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`Daralyn Durie (ddurie@durietangri.com)
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`Andrew Danford (Andrew.Danford@wilmerhale.com)
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`Lisa Pirozzolo (Lisa.Pirozzolo@wilmerhale.com)
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`Kevin Prussia (Kevin.Prussia@wilmerhale.com)
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`By: /Cynthia Lambert Hardman/
`Cynthia Lambert Hardman (Reg. No. 53,179)
`GOODWIN PROCTER LLP
`The New York Times Building
`620 Eighth Avenue
`New York, NY 10018
`(212) 813-8800 (telephone)
`(212) 355-3333 (facsimile)
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