UNITED STATES PATENT AND TRADEMARK OFFICE
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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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`CELLTRION’S REPLY IN SUPPORT OF ITS
`MOTION TO EXCLUDE EVIDENCE
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`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`PROTECTIVE ORDER MATERIAL
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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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`CELLTRION’S REPLY IN SUPPORT OF ITS
`MOTION TO EXCLUDE EVIDENCE
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`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`PROTECTIVE ORDER MATERIAL
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`I.
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`IPR2017-01373
`Petitioner’s Reply in Support of its Motion to Exclude
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`Exhibits 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, and 2009
`Should Be Excluded as Unauthenticated, Not the Best Evidence, and
`Hearsay
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`1
`PROTECTIVE ORDER MATERIAL
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`IPR2017-01373
`Petitioner’s Reply in Support of its Motion to Exclude
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`2
`PROTECTIVE ORDER MATERIAL
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`IPR2017-01373
`Petitioner’s Reply in Support of its Motion to Exclude
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`PROTECTIVE ORDER MATERIAL
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`IPR2017-01373
`Petitioner’s Reply in Support of its Motion to Exclude
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`4
`PROTECTIVE ORDER MATERIAL
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`IPR2017-01373
`Petitioner’s Reply in Support of its Motion to Exclude
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`5
`PROTECTIVE ORDER MATERIAL
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`IPR2017-01373
`Petitioner’s Reply in Support of its Motion to Exclude
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`II. Exhibits 2014 and 2015 Should Be Excluded
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`6
`PROTECTIVE ORDER MATERIAL
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`IPR2017-01373
`Petitioner’s Reply in Support of its Motion to Exclude
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`III. Portions of Exhibits 2016, 2017, and 2018 Should Be Excluded to the
`Extent that they Rely on Otherwise Inadmissible Evidence and Lack
`Foundation
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`As explained in Petitioner’s Motion to Exclude, Portions of Exhibits 2016-
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`2018 should be excluded because they rely on otherwise inadmissible evidence, as
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`described above regarding Exhibits 2001-2009. (Paper 63 at 6-7.)
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` Portions of Exhibit 2016 should also be excluded because they lack
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`foundation under Federal Rule of Evidence 602. In the challenged paragraphs,
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`Dr. Presta improperly speculates as to the knowledge of Dr. Carter. Simply
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`because these scientists worked closely with one another and were in
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`communication does not provide an evidentiary basis to establish Dr. Presta’s
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`personal knowledge of facts that Dr. Carter knew. Such speculation is particularly
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`improper in light of the fact that Patent Owner proffered a declaration from Dr.
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`Carter and defended him at a deposition in this matter. Patent Owner could have
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`offered testimony from Dr. Carter himself concerning his knowledge of the
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`relevant facts but failed to do so.
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`7
`PROTECTIVE ORDER MATERIAL
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`IPR2017-01373
`Petitioner’s Reply in Support of its Motion to Exclude
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`IV. Exhibits 2021, 2053, 2059, and 2060 Should Be Excluded Because they
`Are Not Prior Art and Are Therefore Not Relevant
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`Exhibits 2021, 2053, 2059, and 2060 were not available until after the
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`relevant priority date. Petitioner maintains that these Exhibits are not relevant to
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`this proceeding and should be excluded pursuant to Federal Rules of Evidence 402
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`and 403.
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`V. Exhibits 2042, 2043, 2044, 2055, and 2061 Should Be Excluded Because
`they are Irrelevant
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`Patent Owner confirmed that the Board need not consider Exhibits 2042-
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`2044 in this proceeding. (Paper 68 at 13.) Petitioner maintains that Exhibits 2055
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`and 2061 should be excluded because Patent Owner did not rely on any of them in
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`either its Patent Owner’s Preliminary Response or its Patent Owner’s Response,
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`and thus they are not relevant under Federal Rule of Evidence 401, inadmissible
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`under Federal Rule of Evidence of 402, and to the extent that they are relevant, the
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`risk of unfair prejudice outweighs any probative value under Federal of Evidence
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`403.
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`VI. Exhibit 2029 Should Be Excluded Because It Is Not Authenticated and
`Is Inadmissible Hearsay
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`Patent Owner again attempts to shift the burden regarding admissibility of
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`evidence to Petitioner regarding Exhibit 2029. Patent Owner has not provided any
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`information to establish the authenticity of Exhibit 2029, as is required by Federal
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`PROTECTIVE ORDER MATERIAL
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`IPR2017-01373
`Petitioner’s Reply in Support of its Motion to Exclude
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`Rule of Evidence 901. Additionally, Patent Owner has not established that Exhibit
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`2029 falls within any exception to the rule against hearsay. Patent Owner relies on
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`the “Residual Exception” to the rule against hearsay, but Rule 807 should not
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`apply here. Exhibit 2029 is not a financial disclosure document that has
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`circumstantial guarantees of trustworthiness—it is only an excerpt of a document
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`reporting alleged financial information. Patent Owner did not present any
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`information about what this document was or how the excerpt was created.
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`Additionally, Rule 807 requires that the party offering a hearsay statement into
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`evidence identify the name and address of the author of such a statement. FRE
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`807(b). Patent Owner did not provide any of this required information, and
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`Petitioner did not have an opportunity to question a knowledgeable witness about
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`this Exhibit. Therefore, the “Residual Exception” to the rule against hearsay
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`should not apply.
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`Patent Owner was aware of Petitioner’s objections to Exhibit 2029, and had
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`an opportunity to establish it as an authentic document that would not be excluded
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`by the rule against hearsay, for example as a business record, but chose not to
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`provide any supplemental evidence to overcome Petitioner’s objections.
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`Therefore, Exhibit 2029 should be excluded as not authenticated under Federal
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`9
`PROTECTIVE ORDER MATERIAL
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`IPR2017-01373
`Petitioner’s Reply in Support of its Motion to Exclude
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`Rule of Evidence 901 and inadmissible hearsay under Federal Rule of Evidence
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`802.
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`VII. Exhibit 2062 Should Be Excluded Because it Is an Irrelevant, Attorney-
`Created Exhibit
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`Patent Owner does not contend that it relied on Exhibit 2062 in either its
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`Preliminary Response or its Response, and therefore it is irrelevant to the issues in
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`this proceeding. If this Exhibit directly addressed Dr. Reichmann’s credibility, as
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`Patent Owner contends, Patent Owner would have directed the Board’s attention to
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`it in its Response. Instead, Patent Owner seeks to confuse the record with
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`attorney-created documents. (Ex. 2039, 226:9-227:13.) To the extent that Exhibit
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`2062 is relevant, which Petitioner denies, any probative value is outweighed by
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`danger of unfair prejudice, confusing the issues, wasting time, or needlessly
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`presenting cumulative evidence. Therefore, Exhibit 2062 should be excluded
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`under Federal Rules of Evidence 401, 402, and 403.
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`VIII. Exhibit 2041 Should Be Excluded to the Extent that it Lacks
`Foundation or Relies on Evidence that Is Irrelevant
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`Petitioner maintains that portions of Exhibit 2041, the Expert Declaration of
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`Dr. Ian Wilson, should be excluded to the extent that they lack foundation or rely
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`on improper evidence under Federal Rule of Evidence 602. Further, because they
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`are unsupported, any probative value of these paragraphs is substantially
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`outweighed by the danger of unfair prejudice, confusing the issues, wasting time,
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`PROTECTIVE ORDER MATERIAL
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`IPR2017-01373
`Petitioner’s Reply in Support of its Motion to Exclude
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`or needlessly presenting cumulative evidence, and these paragraphs should be
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`excluded under Federal of Evidence 403. (See Paper 63 at 13.)
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`Dated: July 10, 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
`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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`PROTECTIVE ORDER MATERIAL
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`IPR2017-01373
`Petitioner’s Reply in Support of its Motion to Exclude
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`CERTIFICATE OF SERVICE
`Pursuant to 37 C.F.R. § 42.6(e), I certify that on this 10th of July, 2018, I
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`caused a copy of this PETITIONER CELLTRION’S REPLY IN SUPPORT OF
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`ITS MOTION TO EXCLUDE EVIDENCE by email on the lead and back up
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`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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