June 20, 2018
`CONFERENCE CALL
`
`INATSONLABORATORESVSUNWEDTHERAPEUNCS 1
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL Board
`
`________________________ X
`
`WATSON LABORATORIES,
`
`I
`
`INC.,
`
`) Case No.
`
`IRP2017—01621
`
`Petitioner,
`
`)
`
`Patent No. 9,358,240
`
`vs.
`
`) Case No.
`
`IRP2017—01622
`
`UNITED THERAPEUTICS,
`
`INC.,
`
`Patent Owner.
`
`I
`
`I
`
`)
`
`________________________ X
`
`Patent NO. 9,339—507
`
`I
`
`Pages 1—36
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`TELEPHONE CONFERENCE
`HELD BEFORE ADMINISTRATIVE PATENT JUDGES
`
`DAVID COTTA, TONI SCHEINER AND ERICA FRANKLIN
`
`Wednesday, June 20, 2018
`1:11 p.m.
`Foley & Lardner
`Washington Harbour
`3000 K Street, N.W., Suite 600
`
`Washington, D.C.
`Sara A. Watt, RPR, RMR, CRR
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`WATSON LABORATORIES V. UNITED THERAPEUTICS, |PR2017-01621
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`UNITED THERAPEUTICS EX. 2210
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`Page 1
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`CONFERENCE CALL
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`INATSONLABORATORESVSUNWEDTHERAPEUNCS 1
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL Board
`
`________________________ X
`
`WATSON LABORATORIES,
`
`I
`
`INC.,
`
`) Case No.
`
`IRP2017—01621
`
`Petitioner,
`
`)
`
`Patent No. 9,358,240
`
`vs.
`
`) Case No.
`
`IRP2017—01622
`
`UNITED THERAPEUTICS,
`
`INC.,
`
`Patent Owner.
`
`I
`
`I
`
`)
`
`________________________ X
`
`Patent NO. 9,339—507
`
`I
`
`Pages 1—36
`
`TELEPHONE CONFERENCE
`HELD BEFORE ADMINISTRATIVE PATENT JUDGES
`
`DAVID COTTA, TONI SCHEINER AND ERICA FRANKLIN
`
`Wednesday, June 20, 2018
`1:11 p.m.
`Foley & Lardner
`Washington Harbour
`3000 K Street, N.W., Suite 600
`
`Washington, D.C.
`Sara A. Watt, RPR, RMR, CRR
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`800.21 1.0500 (3376)
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`WATSON LABORATORIES V. UNITED THERAPEUTICS, |PR2017-01621
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`UNITED THERAPEUTICS EX. 2210
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`Page 1
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`June 20, 2018
`CONFERENCE CALL
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`\NATSONLABORATORESVSUNWEDTHERAPEUWCS 2
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`ON BEHALF OF THE PETITIONER:
`
`Kurt Mathas, Esquire (by telephone}
`Winston & Strawn
`35 West Wacker Drive
`
`Chicago, Illinois
`(312) 558—5700
`Kmathas®winston.com
`
`60601
`
`ON BEHALF OF THE PATENT OWNER:
`
`George E. Quillin, Esquire
`Natasha Iyer, Esquire
`Stephen B. Maebius, Esquire (by telephone)
`Foley & Lardner
`Washington Harbour
`3000 K Street, N.W., Suite 600
`
`Washington, D.C.
`(202) 672—5300
`
`20007
`
`unillin@foley.com
`niyer®foley.com
`smaebius®foley.com
`
`—
`'
`
`Veronica Ascarrunz, Esquire (by telephone)
`Wilson, Sonsini, Goodrich & Rosati
`1700 K Street, N.W.
`Fifth Floor
`
`Washington, D.C.
`(202) 973—8800
`
`20006—3817
`
`vascarrunz@wsgr.com
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`WATSON LABORATORIES V. UNITED THERAPEUTICS, |PR2017-01621
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`UNITED THERAPEUTICS EX. 2210
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`PageZ
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`June 20, 2018
`CONFERENCE CALL
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`INATSONLABORATORESVSUNWEDTHERAPEUWCS 3
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`P R O C E E D I N G S
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`MR. QUILLIN: This is George Quillin on
`
`behalf of the Patent Owner joining the call.
`
`MR. MAEBIUS: Also Steve Maebius on
`
`behalf of Patent Owner.
`
`MS.
`
`IYER: Natasha Iyer on behalf of
`
`Patent Owner.
`
`JUDGE GOTTA:
`
`Is there anyone from
`
`Petitioner on the line?
`
`I
`
`MR. QUILLIN: This is George Quillin for
`
`the Patent Owner. Mr. Kurt Mathas is attempting to
`
`call in.
`
`Thank you.
`
`MR. MATHAS: Hi, George.
`
`I just joined.
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`MR. QUILLIN: Wonderful.
`
`JUDGE GOTTA: Okay.
`
`Is there anybody
`
`else that's going to be attending from Petitioner
`
`or do we have the complete roster of attendees?
`
`MR. MATHAS:
`
`It's just me.
`
`Thank you.
`
`JUDGE GOTTA:
`
`So it sounds like we're
`
`good to go?
`
`MR. QUILLIN:
`
`I believe so, Your Honor.
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`
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`Q ESQUIRE
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`WATSON LABORATORIES V. UNITED THERAPEUTICS, |PR2017-01621
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`UNITED THERAPEUTICS EX. 2210
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`Page 3
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`June 20, 2018
`CONFERENCE CALL
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`JUDGE GOTTA: Okay.
`
`Now,
`
`I understand
`
`that Patent Owner has arranged for a court reporter
`
`to be present;
`
`is that correct?
`
`MR. QUILLIN: Yes, Your Honor. This is
`
`George Quillin. We have a court reporter here on
`
`location with us.
`
`JUDGE GOTTA: Okay. And could you please
`
`provide a transcript of the call to Petitioner and
`file the transcript with the Board as an ekhibit?
`
`MR. QUILLIN: Yes, Your Honor, we will.
`
`Because the court reporter is here with
`
`me, we joined the call after there were any
`
`introductions by the Board.
`
`If you'd like the
`
`court reporter to have the names of the panel, now
`
`would be a good time,
`
`I suggest.
`
`JUDGE GOTTA: Understood.
`
`Thank you for
`
`the heads up.
`
`For the benefit of the court reporter,
`
`this is Judge Gotta speaking. And with me on the
`
`line are Judges Scheiner and Franklin. And this is
`
`a conference call concerning IPR2017—01621 and
`
`IPR2017—01622.
`
`
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`WATSON LABORATORIES V. UNITED THERAPEUTICS, |PR2017-01621
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`Page4
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`June 20, 2018
`CONFERENCE CALL
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`So my understanding is that Patent Owner
`
`is requesting this conference call to address two
`
`separate issues.
`
`The first issue relates to the
`
`scheduling and location of four non—party fact
`
`witnesses, all of whom are located in Germany. And
`
`the second issue relates to Patent Owner's reliance
`
`on its post—SAS supplemental response or reliance
`
`on arguments that were presented in the preliminary
`responses in the post—SAS supplemental response.
`
`So let's start with the first issue.
`
`Patent Owner, since you requested the call can you
`
`please explain the nature of the problem.
`
`MR. QUILLIN: Yes, Your Honor. This is
`
`George Quillin.
`
`This has to do with the authorship of a
`
`particular paragraph, actually portions of a
`
`particular paragraph of a journal article called
`
`Ghofrani, which is Exhibit 1005. These four
`
`declarants are listed as co—authors on the entire
`
`article, but they‘re not,
`
`they're not all authors
`
`of this particular excerpt. And these four
`
`witnesses are not under the control of the Patent
`
`
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`Q ESQUIRE
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`WATSON LABORATORIES V. UNITED THERAPEUTICS, |PR2017-O1621
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`Page 5
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`June 20, 2018
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`INATSONLABORATORESVSUNWEDTHERAPEUWCS 6
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`Owner.
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`The Board's rules, as you know, say the
`
`cross—examination depositions should be in the U.S.
`
`unless, unless the parties agree otherwise or the
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`Board orders. We have been attempting to agree
`
`with the Petitioner for a location not in the U.S.,
`
`and in our View the Petitioner has unreasonably
`
`withheld agreement.
`
`I've got six broad points that
`
`I'd like to make.
`
`‘
`
`So the first one,
`
`the first point has to
`
`do with the length and the nature of the
`
`declarations.
`
`I had e—mailed the Board earlier
`
`with the names of these four witnesses and their
`
`exhibit numbers.
`
`I'll take the two of them in the
`
`middle.
`
`So Dr. Grimminger and Dr. Reichenberger,
`
`each testify as to this excerpt, saying,
`
`I'm not
`
`the author.
`
`I didn't write that. And so
`
`Grimminger says he didn't write it and he says
`
`Reichenberger did not write it.
`
`Reichenberger,
`
`in his very short
`
`I,
`declaration, says the same thing.
`
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`Q ESQUIRE
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`neposmou sownous
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`800.211.0EPO (3376)
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`ESQUFmSO’UtionS.Com
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`WATSON LABORATORIES V. UNITED THERAPEUTICS, |PR2017-O1621
`
`UNITED THERAPEUTICS EX. 2210
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`Pages
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`
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`June 20, 2018
`CONFERENCE CALL
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`INATSONLABORATORESVSUNWEDTHERAPEUWCS 7
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`Reichenberger, didn't write it; and Grimminger
`
`didn't write it.
`
`He says Ghofrani wrote other
`
`portions and he says Seeger and another co—author,
`
`Voswinckel, wrote this excerpt.
`
`So those two
`
`witnesses say,
`
`in their very short declarations,
`
`say this.
`
`Ghofrani in his first declaration, 2026,
`
`says the same thing.
`I, Ghofrani, didn't write
`this excerpt.
`I wrote something else. And to my
`
`knowledge, it's Seeger and Voswinckel that wrote
`
`this excerpt.
`
`So those three witnesses all say the same
`
`thing,
`
`that they didn't write this excerpt.
`
`Dr. Seeger,
`
`in his excerpt, says, I,
`
`Seeger, did write it, along with Voswinckel. And
`
`these other guys,
`
`they did not write it.
`
`So the length of the declarations and the
`
`content are very short.
`
`They go to the facts of
`
`who authored this thing, not in any technological
`
`detail.
`
`So that's the first point.
`
`In our view,
`
`in our view the case law
`
`from the Board is clear to us that on those facts
`
`
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`Q ESQUIRE
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`WATSON LABORATORIES V. UNITED THERAPEUTICS, |PR2017-O1621
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`Page?
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`June 20, 2018
`CONFERENCE CALL
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`there's no case where the Board has compelled such
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`a witness to come to the United States to be
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`cross—examined on such a short factual declaration.
`
`But these are not ——
`
`JUDGE COTTA: Are there cases that you
`
`want to refer us to?
`
`MR. QUILLIN: Yes, Your Honor,
`
`there are
`
`three cases.
`
`I can address those now. Three cases
`
`are Instradent against Noble,
`
`IPR2015—017BBE This
`
`is Paper 61.
`
`The other case is Activision, Activision
`
`Blizzard against Acceleration Bay. That's
`
`IPR2015—01951.
`
`It's Paper 17.
`
`And the third one is IBM against
`
`Intellectual Ventures,
`
`IPR2014—01385, Paper 19.
`
`So in our View,
`
`just on those facts,
`
`the
`
`Board has not compelled bringing the witness all
`
`the way to the United States. But as the saying
`
`goes, wait,
`
`there's more.
`
`So our second point has to do with the
`
`identity of these witnesses. These witnesses are
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`not our witnesses. They‘re not our employees.
`
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`Q ESQUIRE
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`WATSON LABORATORIES V. UNITED THERAPEUTICS, |PR2017-O1621
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`UNITED THERAPEUTICS EX. 2210
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`Pages
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`June 20, 2018
`CONFERENCE CALL
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`They're not under our control. And they're not
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`expert witness,
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`they‘re fact witnesses. These are
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`the listed co—authors of an article that Watson,
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`the Petitioner, picked out.
`
`It's not as though there was a set of
`
`U.S. co—authors and a different set of German
`
`authors, and we picked the German authors just to
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`cause trouble. That's not what‘s going on.
`It's
`not as though we've brought this on ourselwes, Your
`
`Honor.
`
`These are four fact witnesses listed in the
`
`article that Watson itself has picked out and
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`relied on. And these folks are not under our
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`control. That's the second point.
`
`The third point ——
`
`JUDGE GOTTA:
`
`So with respect to that
`
`point,
`
`I just wanted to ask, Dr. Seeger states that
`
`he's a paid consultant for UTC.
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`MR. QUILLIN: Correct, Your Honor.
`
`JUDGE GOTTA: Does that situate him
`
`differently from the other three?
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`MR. QUILLIN:
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`From two of them.
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`Grimminger and Reichenberger were not paid, and
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`
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`Q ESQUIRE
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`22 These are not —— these are not retirees lounging on
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`June 20, 2018
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`\NATSONLABORATORESVSUNWEDTHERAPEUWCS 10
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`Ghofrani
`
`in his second declaration makes clear that
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`he is a paid consultant.
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`So although these folks are paid,
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`they're
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`not our employees and they're not under our control
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`in that sense. They've got their own counsel. We
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`can't —— at the present time, we can't even
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`communicate directly with them. We've got to go,
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`as you can appreciate,
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`through their counsel.
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`And it's burdensome on these witnesses.
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`control, putting Seeger aside for the moment. He's
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`a little different because he's the head. But
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`
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`Q ESQUIRE
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`the Riviera. These are active folks with their own
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`business.
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`What sort of business are they in? Well,
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`these are not fungible guys on some production
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`line. These are medical professionals,
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`these are
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`physicians,
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`they're clinicians with an ongoing
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`responsibility to patients and their colleagues and
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`their staff and their employer.
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`They're not only not under our control,
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`but not,
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`in a sense, not even under their own
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`June 20, 2018
`CONFERENCE CALL
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`these three, Ghofrani, Grimminger, and
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`Reichenberger, are employees of their respective
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`clinics or hospitals, and they got to get —— you
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`know,
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`they got to get permission from the employer.
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`They can't just up and walk away.
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`JUDGE COTTA:
`
`In connection with the paid
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`consultant, are you just —— to the extent you can
`
`disclose it, are you —— are Dr. Seeger and
`Dr. Ghofrani getting compensated only for their
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`time in connection with this deposition and their
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`declarations or ——
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`MR. QUILLIN: Yes, Your Honor.
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`JUDGE GOTTA: Or is there a relationship
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`with UTC beyond that?
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`MR. QUILLIN:
`
`I'm not —— it's my
`
`understanding that there is not a relationship with
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`UTC beyond that.
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`All of these witnesses work as internists
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`and professors in hospitals in a variety of
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`locations,
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`including Bad Nauheim, Giessen/Marburg,
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`Friedberg.
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`They treat patients directly. Many of
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`they're not coming in
`these patients, you know,
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`Q ESQUIRE
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`with, you know,
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`toenail problems. These may have
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`life—threatening diseases. And at least
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`Drs. Ghofrani and Seeger are the heads and
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`directors of their divisions and clinics.
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`All, all the doctors' practices include
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`operating on patients and other invasive
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`procedures. Each clinic, as we understand it, has
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`prescheduled days for operations and other
`procedures, which entails scheduling and staffing
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`that may be set months in advance.
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`Any travel to the United States would
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`realistically require these witnesses to be away
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`from their clinics for four to five working days.
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`That's an entire working week.
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`Even depositions in
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`Frankfurt would pull them away from their clinical
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`responsibilities and their patients.
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`They're willing, as we understand it,
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`they're willing to appear as witnesses, but of
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`course the well—being and the life of their
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`patients is their top priority.
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`80 replacing any
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`of them, much less all of them, for required
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`planned clinics and procedures if they were to
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`travel to the U.S. would be next to impossible for
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`them.
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`JUDGE GOTTA:
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`So you say they're willing
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`to participate as witnesses.
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`What have you offered as an accommodation
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`to Petitioner in terms of their availability for
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`depositions?
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`MR. QUILLIN: We've offered to make them
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`available for a deposition in Germany, going
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`through the procedures that are there. We have
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`offered to reimburse travel expenses for Watson's
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`counsel.
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`And I don't want to jump too far ahead,
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`but I'm believing, Your Honor —— I obviously can't
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`speak for the Petitioner, but I believe that if you
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`say that Patent Owner is not required to bring
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`those four to the U.S.,
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`then the parties will be
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`able to work out suitable locations and times and
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`that sort of thing that are mutually convenient.
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`We've got a relatively good working
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`relationship,
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`I think. And as I understand it,
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`there's no reason,
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`there‘s no —— there's no
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`22 which has to do with the logistics of taking a
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`deposition in Germany. We have to go, as I
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`understand it under the rules, we have to go
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`through the consulate, which is in Frankfurt. And
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`the consulate then has to convey the request to the
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`embassy in Berlin.
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`The embassy then communicates
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`to the German department of —— Ministry of Justice.
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`So there's a long lead time. As we understand it,
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`it could be six to eight weeks.
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`We raised this topic with Petitioner's
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`counsel,
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`like,
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`three weeks ago and haven't been
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`able to make much progress. And from our view,
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`the
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`articulated reason why the Petitioner is not
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`willing to have the depositions in Germany.
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`So that has to do with the burden on the
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`witnesses, which includes, you know,
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`the summer
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`months and German hospitals are understaffed and
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`there's a lot of other stuff going on about they're
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`trying to rearrange their schedules and doing it
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`all in advance.
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`And that plays into the fourth point,
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`the less
`longer Watson waits to deal with this,
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`likely we're able to get approval on time, which we
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`say falls on Watson.
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`We certainly —— you know, we, United
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`Therapeutics, we're not in control of the
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`consulate. There may be logistical problems with
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`things going on there. But we're confident that if
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`you tell us that we're not required to bring them
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`to the U.S., we can work through whatever the
`situation is and both sides, you know, working
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`hard, will do their best to make them available for
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`a deposition.
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`The fifth point has to do with the case
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`law.
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`I've already mentioned the three cases that
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`we say support us.
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`In Instradent,
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`the Board found
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`it was unnecessarily burdensome to make an Israeli
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`third—party witness appear in the U.S. for
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`cross—examination, and ordering the deposition
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`occur in Israel or by video.
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`In Activision,
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`the Board found it
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`unnecessarily costly and burdensome to make an
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`Australian declarant available for a live
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`deposition in the U.S. regarding a three—page
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`declaration, and ordering that they be made
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`available for a video deposition.
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`And in IBM,
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`the Board permitted a
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`telephonic deposition of no more than an hour where
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`the declaration was three pages.
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`Now,
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`there are a couple cases that Watson
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`has pointed out, but we think those are clearly
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`distinguishable.
`One of them is HTC Corporation, that's
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`IPR2014—01198.
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`It had to do with a French witness.
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`And, again, as I understand it, he had to do with
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`more like expert
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`testimony, but he was —— he was
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`someone who was not willing to be deposed in the
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`U.S., and the Board encouraged the parties to work
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`together and come up with a solution.
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`I think —— I
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`think if the Board were to tell us that we can have
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`the deposition in Europe,
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`that the parties would be
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`able to work out a solution.
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`And there's another case that they've
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`cited which is Valve Corporation, which is
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`IPR2017—00136. But
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`I —— again,
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`those cases don't
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`control here. They're easily distinguishable from
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`what we have here.
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`JUDGE GOTTA: Okay.
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`Just to get you back
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`to your six points,
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`I think I‘ve got 1, 2, 4, and
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`5. Maybe I missed 3 and 6.
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`MR. QUILLIN:
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`3 was the burden on the
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`witnesses.
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`So 2 was the identity of the witnesses.
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`These are third parties, not employees, not under
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`our control.
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`3 was the burden on the witnesses.
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`These guys are, as I say ——
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`‘
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`JUDGE COTTA: Yeah.
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`MR. QUILLIN:
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`4 had to do with the
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`logistics of the deposition.
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`JUDGE GOTTA:
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`5 is the case law.
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`MR. QUILLIN:
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`5 is the case law.
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`And 6 was the question you asked about
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`the status of negotiations so far. We‘re working
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`back and forth and we've —— I think have been
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`negotiating in good faith. But the sticking point
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`seems to be the Petitioner's,
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`in our View,
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`unreasonable unwillingness.
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`JUDGE COTTA: Okay.
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`So the final thing has to
`MR. QUILLIN:
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`do with the ask. What do we want from the Board?
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`All we're looking for really, Your Honor,
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`is an order saying that the depositions are not
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`required in the U.S. We‘ll do our best, working
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`with the witnesses, over whom we don‘t have any
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`control, and with Petitioner to come up with a
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`mutually satisfactory location for the deposition
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`in Europe.
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`JUDGE COTTA: Okay.
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`Can I hear trom the
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`Petitioner, please?
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`MR. MATHAS: Yes, Your Honor. This is
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`Kurt Mathas for Petitioner. Let me respond to a
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`few things that Mr. Quillin just said.
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`As the Board noted in the questioning,
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`two of these witnesses are paid consultants for
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`United Therapeutics. At least Dr. Seeger has a
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`long history with United Therapeutics, consulting
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`relationships going back into the early 2000s.
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`Over the course of that history and as
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`recently as a couple years ago Dr. Seeger has been
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`in the United States for meetings in connection
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`with United Therapeutics business. And so we
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`22 Your Honor.
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`As the actual declarations go,
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`the Seeger
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`declaration,
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`there's two of them. One is six
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`pages, one is ten pages.
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`The Ghofrani declaration,
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`again there's two of them, one is four pages, one
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`is six pages. Grimminger and Reichenberger do in
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`fact have shorter depositions and are not paid
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`consultants of UTC at this point.
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`One other point about the importance of
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`these declarations, Your Honor,
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`is this issue was
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`at the center of the pre—institution fight. And,
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`in fact,
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`four of the six declarations were
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`certainly think that that is relevant to the claims
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`of burden and the alleged unavailability of these
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`folks to be able to travel to the U.S.
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`By the same token,
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`there was a point made
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`about that this is all really about one paragraph
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`and three guys who said,
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`"I didn't write it," and
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`one guy who said,
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`"I did write it."
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`I would
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`respectfully suggest that that is underselling the
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`evidence and the importance of the evidence here,
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`submitted in connection with the Patent Owner's
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`preliminary response. And as Your Honors may
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`recall,
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`there was this dispute about the authorship
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`of Ghofrani and the inventorship of the claims at
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`issue.
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`Four of these declarations were submitted
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`with the Patent Owner's preliminary response.
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`Watson sought
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`leave and was granted
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`permission to put
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`in a reply to Patent Owner's
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`preliminary response to raise questions as to some
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`of the statements made in the declarations with
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`respect to other evidence of record that called
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`into question some of the statements in the
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`declarations.
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`We submitted that reply brief and Your
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`Honors,
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`in your institution decision,
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`found that
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`this issue of what the inventors said in their
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`declarations versus some of this other evidence of
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`record raised a general issue of material fact as
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`to the contribution of the non—inventors to the
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`references in question.
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`And so we think that that piece of this,
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`Your Honors, distinguishes our case and the
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`importance of these individual witnesses where
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`their credibility has already been called into
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`question and will be critical in these depositions
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`from the cases relied upon by Patent Owner that he
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`cited to you in his remarks. And in each of those,
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`the depositions were —— or the declarations were
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`limited and on limited issues. Here, at least two
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`of the declarations span ten pages cumulatively, or
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`more, and all of them go to a critical issue as
`between the parties.
`‘
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`With respect to the case law, counsel for
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`Patent Owner cited two of the cases that we would
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`rely on, but we would also note two things about
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`those cases and their analysis of the rules that
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`require depositions within the United States unless
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`otherwise directed.
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`With respect to the HTC case,
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`the panel
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`there notes that in fact the default of position
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`established by the rules is that the party
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`proffering a declarant‘s testimony shall make that
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`declarant available for cross—examination within
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`the United States.
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`The Valve Corp. case, which was also
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`22 Owner.
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`A third case that we cited to Patent
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`Owner which wasn't mentioned in the previous
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`comments is Square, Inc., versus REM Holding 3,
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`LLC. That's IPR2014—312, at Paper 37.
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`And there, Your Honors,
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`there was a
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`declarant who was an author of one of the prior art
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`references, and he had put in a declaration about
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`the subject matter of the prior art references.
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`And he happened to be located in Hong Kong and he
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`didn't want to come to the U.S.
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`to be deposed.
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`The Board,
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`in Paper 37 in Square, Inc.,
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`mentioned, also has a discussion of the reason
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`behind the rules and what it means when you submit
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`a declaration. And there the panel noted that
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`Patent Owner chose to submit a declaration from
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`Mr. Rubinger. That choice came with certain
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`foreseeable consequences. Specifically, it was
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`foreseeable that the witness would be subject to
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`cross—examination and that the burden and expense
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`of producing that witness would fall on Patent
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`V. REM Holdings 3, ordered that the witness, quote,
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`must be made available in the United States for
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`cross—examination or Patent Owner may request to
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`withdraw his declaration from consideration in this
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`proceeding.
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`So, Your Honors, we do think that there
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`is case law that goes in our favor. We think the
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`cases which Patent Owner has cited are themselves
`
`distinguishable, given the issues at play here.
`In addition, Your Honor ——
`‘
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`JUDGE COTTA: Let me interrupt you for a
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`second,
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`just to get the paper number for
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`IPR2017—00136,
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`just to save some trouble.
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`MR. MATHAS: Yes. That is Paper 29, Your
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`Honor. And the quote that I read is at page 30.
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`JUDGE COTTA: Okay.
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`MR. MATHAS: And in 2014—1198,
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`the quote
`
`that I read is also at page 30.
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`Two more points I think, Your Honor,
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`is
`
`that —— one of the things I think that here is that
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`there is an overstatement, perhaps, of the burden
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`on the doctors involved in this case.
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`I recognize that being deposed is not
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`probably high on many people's list. However,
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`based on the fact, especially with Dr. Seeger who
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`has come to the U.S. multiple occasions on behalf
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`of UTC business, and the fact that these folks can
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`come during different periods within the discovery
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`period, and that these folks are presumably out of
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`the office from time to time on personal or other
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`business matters, it seems to me that the burden,
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`respectfully, may be overstated in that they are
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`unable to get away and come to the United States.
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`And then the last thing I guess I would
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`say is —— well, maybe two more things. One is that
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`it is —— I think Patent Owner‘s position is
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`ignoring the burden that they are attempting to
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`place on Petitioner here.
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`We are under a tight timeframe, Your
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`Honor, with respect to our discovery period,
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`because of the subsequent institution decision and
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`the way the schedule played out after that. We
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`have approximately seven weeks to take discovery
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`from when we will get Patent Owner's supplemental
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`response before our reply is due.
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`During that period of time, as it
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`currently stands, we are going to be required to
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`take at least ten depositions of declarants that
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`have put in declarations so far. There may be
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`additional declarations.
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`So with that kind of
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`truncated discovery period,
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`in light of the way the
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`schedule shook out, we have to not only take these
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`depositions, we have to prepare our reply brief and
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`apparently also go to Germany for a week or however
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`long it takes to get these depositions done.
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`And, apparently,
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`I learned this morning
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`that,
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`as counsel indicated,
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`this is not a simple
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`process of going to a court, a conference room in
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`Germany, but instead we apparently have to go
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`through these formal processes. And I was,
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`I
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`guess, under the misimpression that Patent Owner
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`was offering to make those arrangements. As of
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`this morning,
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`that additional burden was going to
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`fall on us to get the depositions of their
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`declarants.
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`With respect to the negotiations between
`
`the parties, we have had them, as counsel said.
`
`
`Q ESQUIRE
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`neposmou sownous
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`800.211.0EPO (3376)
`
`ESQUFmSO’UtionS.Com
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`WATSON LABORATORIES V. UNITED THERAPEUTICS, |PR2017-01621
`
`UNITED THERAPEUTICS EX. 2210
`
`Page25
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`
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`June 20, 2018
`CONFERENCE CALL
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`\NATSONLABORATORESVSUNWEDTHERAPEUWCS 26
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`
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`10
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`11
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`12
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`13
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`14
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`16
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`One of the compromises we proposed was that Patent
`
`Owner bring their two paid consultants to the
`
`United States, Dr. Ghofrani and Dr. Seeger, and
`
`that we would go to Germany for the other two,
`
`Dr. Reichenberger and Grimminger.
`
`In part because,
`
`as Your Honor noted,
`
`there does seem to be a
`
`distinction between paid and unpaid consultants,
`
`and we thought that is a reasonable compromise in
`order to bring some resolution to this, rather than
`
`demanding that all four of the declarants be
`
`brought to the United States.
`
`JUDGE GOTTA: Okay.
`
`So just to
`
`summarize, it seems to me like the principal
`
`objection that Petitioner has to taking the
`
`depositions in Germany is just the logistics and
`
`the tight timeframe that Petitioner is under in
`
`terms of responding to the Patent Owner's
`
`supplemental response and the Patent Owner's
`
`response and squeezing in ten depositions in seven
`
`weeks?
`
`MR. MATHAS: That‘s right, Your Honor,
`
`the burden and inconvenience of doing that work.
`
`
`Q ESQUIRE
`
`neposmou sownous
`
`800.211.0EPO (3376)
`
`ESQUFmSO’UtionS.Com
`
`WATSON LABORATORIES V. UNITED THERAPEUTICS, |PR2017-01621
`
`UNITED THERAPEUTICS EX. 2210
`
`Page26
`
`
`
`22
`
`June 20, 2018
`CONFERENCE CALL
`
`\NATSONLABORATORESVSUNWEDTHERAPEUWCS 27
`
`JUDGE COTTA: Okay.
`
`Can I ask Patent
`
`Owner just a quick question?
`
`Have you checked to see whether any of
`
`the witnesses have plans to be in the United
`
`States,
`
`independent of this, during the relevant
`
`time period?
`
`MR. QUILLIN: We've checked to the extent
`
`we can, Your Honor. As I say,
`
`they're not under
`
`our control, we got to go through their counsel.
`
`We have checked publicly available
`
`schedules and it appears that they‘re not
`
`participating in conferences in the U.S., for
`
`example.
`
`So to our knowledge,
`
`to our knowledge
`
`they are not otherwise coming to the U.S. during
`
`this time period.
`
`JUDGE C
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