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`CONFERENCE CALL
`June 20, 2018
`
`WATSON LABORATORIES vs UNITED THERAPEUTICS 1
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL Board
`
`~----- +e eee xX
`
`WAT
`
`SON LABORATORIES,
`
`)
`
`INC.
`
`1
`
`) Case No.
`
`IRP2017-01621
`
`Petitioner,
`
`)
`
`Patent No. 9,358,240
`
`vs.
`
`) Case No.
`
`IRP2017-01622
`
`UNI
`
`INC.
`
`TED THERAPEUTICS,
`1
`
`Patent Owner.
`
`)
`)
`
`)
`
`Patent No. 9,339-507
`:
`
`Pages 1-36
`
`~----- +e eee xX
`
`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
`
`
`
`Z ESQUIRE
`
`DEPOSITION SOLUTIONS
`
`800.211.DEPO (3376)
`
`EsquireSolutions.com
`
`UNITED THERAPEUTICS EX. 2210
`WATSON LABORATORIES V. UNITED THERAPEUTICS, IPR2017-01622
`Page 1
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`June 20, 2018
`CONFERENCE CALL
`
`WATSON LABORATORIES vs UNITED THERAPEUTICS 2
`
`ON BEHALF OF THE PETITIONER:
`Kurt Mathas, Esquire (by telephone)
`Winston & Strawn
`35 West Wacker Drive
`Chicago, Illinois
`60601
`(312) 558-5700
`Kmathas@winston.com
`
`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.
`20007
`(202) 672-5300
`Gquillin@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
`vascarrunz@wsgr.com
`
`20006-3817
`
`
`
`Z ESQUIRE
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`UNITED THERAPEUTICS EX. 2210
`WATSON LABORATORIES V. UNITED THERAPEUTICS, IPR2017-01622
`Page 2
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`
`
`CONFERENCE CALL
`WATSON LABORATORIES vs UNITED THERAPEUTICS
`
`June 20, 2018
`
`PROCEEDINGS
`
`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 COTTA:
`Petitioner on the line?
`
`Is there anyone from
`:
`
`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.
`
`3
`
`MR. QUILLIN: Wonderful.
`
`JUDGE COTTA: 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 COTTA:
`
`So it sounds like we're
`
`good to go?
`
`MR. QUILLIN:
`
`I believe so, Your Honor.
`
`
`
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`Page 3
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`CONFERENCE CALL
`WATSON LABORATORIES vs UNITED THERAPEUTICS
`
`June 20, 2018
`
`JUDGE COTTA: 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 COTTA: Okay. And could you please
`
`provide a transcript of the call to Petitioner and
`file the transcript with the Board as an exhibit?
`
`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 COTTA: Understood.
`
`Thank you for
`
`4
`
`the heads up.
`
`For the benefit of the court reporter,
`
`this is Judge Cotta 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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`Page 4
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`CONFERENCE CALL
`WATSON LABORATORIES vs UNITED THERAPEUTICS
`
`June 20, 2018
`
`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.
`
`5
`
`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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`Page 5
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`CONFERENCE CALL
`WATSON LABORATORIES vs UNITED THERAPEUTICS
`
`June 20, 2018
`
`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
`
`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'd like to make.
`
`I've got six broad points that
`:
`
`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
`
`6 Owner.
`
`I,
`declaration, says the same thing.
`
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`CONFERENCE CALL
`WATSON LABORATORIES vs UNITED THERAPEUTICS
`
`June 20, 2018
`
`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.
`andto 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
`
`ir Reichenberger, didn't write it; and Grimminger
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`from the Board is clear to us that on those facts
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`
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`June 20, 2018
`CONFERENCE CALL
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`WATSON LABORATORIES vs UNITED THERAPEUTICS 8
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`there's no case where the Board has compelled such
`
`a witness to come to the United States to be
`
`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,
`
`IPR2015-01786. 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
`
`not our witnesses. They're not our employees.
`
`
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`CONFERENCE CALL
`WATSON LABORATORIES vs UNITED THERAPEUTICS
`
`June 20, 2018
`
`expert witness,
`
`they're fact witnesses. These are
`
`the listed co-authors of an article that Watson,
`
`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
`
`cause trouble. That's not what's going on.
`It's
`not as though we've brought this on ourselves, Your
`
`Honor.
`
`These are four fact witnesses listed in the
`
`article that Watson itself has picked out and
`
`relied on. And these folks are not under our
`
`control. That's the second point.
`
`The third point --
`
`i) They're not under our control. And they're not
`
`JUDGE COTTA:
`
`So with respect to that
`
`point,
`
`I just wanted to ask, Dr. Seeger states that
`
`he's a paid consultant for UTC.
`
`MR. QUILLIN: Correct, Your Honor.
`
`JUDGE COTTA: Does that situate him
`
`differently from the other three?
`
`MR. QUILLIN:
`
`From two of them.
`
`Grimminger and Reichenberger were not paid, and
`
`
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`June 20, 2018
`CONFERENCE CALL
`
`WATSON LABORATORIES vs UNITED THERAPEUTICS 10
`
`Ghofrani
`
`in his second declaration makes clear that
`
`he is a paid consultant.
`
`So although these folks are paid,
`
`they're
`
`not our employees and they're not under our control
`
`in that sense. They've got their own counsel. We
`
`can't -- at the present time, we can't even
`
`communicate directly with them. We've got to go,
`
`as you can appreciate,
`through their counsel.
`And it's burdensome on these witnesses.
`
`These are not -- these are not retirees lounging on
`
`the Riviera. These are active folks with their own
`
`business.
`
`What sort of business are they in? Well,
`
`these are not fungible guys on some production
`
`line. These are medical professionals,
`
`these are
`
`physicians,
`
`they're clinicians with an ongoing
`
`responsibility to patients and their colleagues and
`
`their staff and their employer.
`
`They're not only not under our control,
`
`but not,
`
`in a sense, not even under their own
`
`control, putting Seeger aside for the moment. He's
`
`a little different because he's the head. But
`
`
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`CONFERENCE CALL
`WATSON LABORATORIES vs UNITED THERAPEUTICS
`
`June 20, 2018
`
`Reichenberger, are employees of their respective
`
`clinics or hospitals, and they got to get -- you
`
`know,
`
`they got to get permission from the employer.
`
`They can't just up and walk away.
`
`JUDGE COTTA:
`
`In connection with the paid
`
`consultant, are you just -- to the extent you can
`
`disclose it, are you -- are Dr. Seeger and
`Dr. Ghofrani getting compensated only for their
`
`time in connection with this deposition and their
`
`declarations or --
`
`MR. QUILLIN: Yes, Your Honor.
`
`JUDGE COTTA: Or is there a relationship
`
`with UTC beyond that?
`
`MR. QUILLIN:
`
`I'm not -- it's my
`
`understanding that there is not a relationship with
`
`11 these three, Ghofrani, Grimminger, and
`
`UTC beyond that.
`
`All of these witnesses work as internists
`
`and professors in hospitals in a variety of
`
`locations,
`
`including Bad Nauheim, Giessen/Marburg,
`
`Friedberg.
`
`They treat patients directly. Many of
`
`they're not coming in
`these patients, you know,
`
`
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`June 20, 2018
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`toenail problems. These may have
`
`life-threatening diseases. And at least
`
`Drs. Ghofrani and Seeger are the heads and
`
`directors of their divisions and clinics.
`
`12 with, you know,
`
`All, all the doctors' practices include
`
`operating on patients and other invasive
`
`procedures. Each clinic, as we understand it, has
`
`prescheduled days for operations and other
`procedures, which entails scheduling and staffing
`
`that may be set months in advance.
`
`Any travel to the United States would
`
`realistically require these witnesses to be away
`
`from their clinics for four to five working days.
`
`That's an entire working week.
`
`Even depositions in
`
`Frankfurt would pull them away from their clinical
`
`responsibilities and their patients.
`
`They're willing, as we understand it,
`
`they're willing to appear as witnesses, but of
`
`course the well-being and the life of their
`
`patients is their top priority.
`
`So replacing any
`
`of them, much less all of them, for required
`
`planned clinics and procedures if they were to
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`WATSON LABORATORIES vs UNITED THERAPEUTICS 13
`
`travel to the U.S. would be next to impossible for
`
`them.
`
`JUDGE COTTA:
`
`So you say they're willing
`
`to participate as witnesses.
`
`What have you offered as an accommodation
`
`to Petitioner in terms of their availability for
`
`depositions?
`
`MR. QUILLIN: We've offered to make them
`
`available for a deposition in Germany, going
`
`through the procedures that are there. We have
`
`offered to reimburse travel expenses for Watson's
`
`counsel.
`
`And I don't want to jump too far ahead,
`
`but I'm believing, Your Honor -- I obviously can't
`
`speak for the Petitioner, but I believe that if you
`
`say that Patent Owner is not required to bring
`
`those four to the U.S.,
`
`then the parties will be
`
`able to work out suitable locations and times and
`
`that sort of thing that are mutually convenient.
`
`We've got a relatively good working
`
`relationship,
`
`I think. And as I understand it,
`
`there's no reason,
`
`there's no -- there's no
`
`
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`
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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
`
`understand it under the rules, we have to go
`
`through the consulate, which is in Frankfurt. And
`
`the consulate then has to convey the request to the
`
`embassy in Berlin.
`
`The embassy then communicates
`
`to the German department of -- Ministry of Justice.
`
`So there's a long lead time. As we understand it,
`
`it could be six to eight weeks.
`
`We raised this topic with Petitioner's
`
`counsel,
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`like,
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`three weeks ago and haven't been
`
`able to make much progress. And from our view,
`
`the
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`June 20, 2018
`CONFERENCE CALL
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`WATSON LABORATORIES vs UNITED THERAPEUTICS 14
`
`articulated reason why the Petitioner is not
`
`willing to have the depositions in Germany.
`
`So that has to do with the burden on the
`
`witnesses, which includes, you know,
`
`the summer
`
`months and German hospitals are understaffed and
`
`there's a lot of other stuff going on about they're
`
`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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`say falls on Watson.
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`We certainly -- you know, we, United
`
`Therapeutics, we're not in control of the
`
`consulate. There may be logistical problems with
`
`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
`
`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
`
`a deposition.
`
`The fifth point has to do with the case
`
`law.
`
`I've already mentioned the three cases that
`
`we Say support us.
`
`In Instradent,
`
`the Board found
`
`it was unnecessarily burdensome to make an Israeli
`
`third-party witness appear in the U.S. for
`
`cross-examination, and ordering the deposition
`
`occur in Israel or by video.
`
`In Activision,
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`the Board found it
`
`unnecessarily costly and burdensome to make an
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`Australian declarant available for a live
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`15 likely we're able to get approval on time, which we
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`deposition in the U.S. regarding a three-page
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`June 20, 2018
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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
`
`someone who was not willing to be deposed in the
`
`U.S., and the Board encouraged the parties to work
`
`together and come up with a solution.
`
`I think -- I
`
`think if the Board were to tell us that we can have
`
`the deposition in Europe,
`
`that the parties would be
`
`able to work out a solution.
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`And there's another case that they've
`
`cited which is Valve Corporation, which is
`
`IPR2017-00136. But I -- again,
`
`those cases don't
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`16 declaration, and ordering that they be made
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`control here. They're easily distinguishable from
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`JUDGE COTTA: Okay.
`
`Just to get you back
`
`to your six points,
`
`I
`
`think I've got 1, 2, 4, and
`
`5. Maybe I missed 3 and 6.
`
`MR. QUILLIN:
`
`3 was the burden on the
`
`witnesses.
`
`So 2 was the identity of the witnesses.
`
`These are third parties, not employees, not under
`
`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
`
`logistics of the deposition.
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`JUDGE COTTA:
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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
`
`the status of negotiations so far. We're working
`
`back and forth and we've -- I think have been
`
`negotiating in good faith. But the sticking point
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`seems to be the Petitioner's,
`
`in our view,
`
`unreasonable unwillingness.
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`JUDGE COTTA: Okay.
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`17 what we have here.
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`So the final thing has to
`MR. QUILLIN:
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`All we're looking for really, Your Honor,
`
`is an order saying that the depositions are not
`
`required in the U.S. We'll do our best, working
`
`with the witnesses, over whom we don't have any
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`control, and with Petitioner to come up with a
`
`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 From the
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`18 do with the ask. What do we want from the Board?
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`Petitioner, please?
`
`MR. MATHAS: Yes, Your Honor. This is
`
`Kurt Mathas for Petitioner. Let me respond to a
`
`few things that Mr. Quillin just said.
`
`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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`of burden and the alleged unavailability of these
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`folks to be able to travel to the U.S.
`
`By the same token,
`
`there was a point made
`
`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."
`
`I would
`
`respectfully suggest that that is underselling the
`evidence and the importance of the evidencehere,
`
`Your Honor.
`
`As the actual declarations go,
`
`the Seeger
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`declaration,
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`there's two of them. One is six
`
`pages, one is ten pages.
`
`The Ghofrani declaration,
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`again there's two of them, one is four pages, one
`
`is six pages. Grimminger and Reichenberger do in
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`fact have shorter depositions and are not paid
`
`consultants of UTC at this point.
`
`One other point about the importance of
`
`these declarations, Your Honor,
`
`is this issue was
`
`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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`19 certainly think that that is relevant to the claims
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`submitted in connection with the Patent Owner's
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`recall,
`
`there was this dispute about the authorship
`
`of Ghofrani and the inventorship of the claims at
`
`issue.
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`Four of these declarations were submitted
`
`with the Patent Owner's preliminary response.
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`Watson sought
`
`leave and was granted
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`permission to put
`
`in a reply to Patent Owner's
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`preliminary response to raise questions as to some
`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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`20 preliminary response. And as Your Honors may
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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
`
`this issue of what the inventors said in their
`
`declarations versus some of this other evidence of
`
`record raised a general issue of material fact as
`
`to the contribution of the non-inventors to the
`
`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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`21
`WATSON LABORATORIES vs UNITED THERAPEUTICS
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`their credibility has already been called into
`
`question and will be critical in these depositions
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`from the cases relied upon by Patent Owner that he
`
`cited to you in his remarks. And in each of those,
`
`the depositions were -- or the declarations were
`
`limited and on limited issues. Here, at least two
`
`of the declarations span ten pages cumulatively, or
`
`more, and all of them go to a critical issue as
`
`between the parties.
`
`With respect to the case law, counsel for
`
`Patent Owner cited two of the cases that we would
`
`rely on, but we would also note two things about
`
`those cases and their analysis of the rules that
`
`require depositions within the United States unless
`
`otherwise directed.
`
`With respect to the HTC case,
`
`the panel
`
`there notes that in fact the default of position
`
`established by the rules is that the party
`
`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
`
`Owner which wasn't mentioned in the previous
`
`comments is Square, Inc., versus REM Holding 3,
`
`LLC. That's IPR2014-312, at Paper 37.
`
`And there, Your Honors,
`
`there was a
`
`declarant who was an author of one of the prior art
`
`references, and he had put in a declaration about
`
`the subject matter of the prior art references.
`
`And he happened to be located in Hong Kong and he
`
`didn't want to come to the U.S.
`
`to be deposed.
`
`The Board,
`
`in Paper 37 in Square, Inc.,
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`June 20, 2018
`CONFERENCE CALL
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`WATSON LABORATORIES vs UNITED THERAPEUTICS 22
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`mentioned, also has a discussion of the reason
`
`behind the rules and what it means when you submit
`
`a declaration. And there the panel noted that
`
`Patent Owner chose to submit a declaration from
`
`Mr. Rubinger. That choice came with certain
`
`foreseeable consequences. Specifically, it was
`
`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
`
`v. REM Holdings 3, ordered that the witness, quote,
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`WATSON LABORATORIES vs UNITED THERAPEUTICS 23
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`must be made available in the United States for
`
`cross-examination or Patent Owner may request to
`
`withdraw his declaration from consideration in this
`
`proceeding.
`
`So, Your Honors, we do think that there
`
`is case law that goes in our favor. We think the
`
`cases which Patent Owner has cited are themselves
`
`distinguishable, given the issues at play here.
`In addition, Your Honor --
`:
`
`JUDGE COTTA: Let me interrupt you fora
`
`second,
`
`just to get the paper number for
`
`IPR2017-00136,
`
`just to save some trouble.
`
`MR. MATHAS: Yes. That is Paper 29, Your
`
`Honor. And the quote that I read is at page 30.
`
`JUDGE COTTA: Okay.
`
`MR. MATHAS: And in 2014-1198,
`
`the quote
`
`that I read is also at page 30.
`
`Two more points I think, Your Honor,
`
`is
`
`that -- one of the things I think that here is that
`
`there is an overstatement, perhaps, of the burden
`
`on the doctors involved in this case.
`
`I recognize that being deposed is not
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`based on the fact, especially with Dr. Seeger who
`
`has come to the U.S. multiple occasions on behalf
`
`of UTC business, and the fact that these folks can
`
`come during different periods within the discovery
`
`period, and that these folks are presumably out of
`
`the office from time to time on personal or other
`
`business matters, it seems to me that the burden,
`respectfully, may be overstated in that they are
`
`unable to get away and come to the United States.
`
`And then the last thing I guess I would
`
`say is -- well, maybe two more things. One is that
`
`it is -- I think Patent Owner's position is
`
`ignoring the burden that they are attempting to
`
`place on Petitioner here.
`
`We are under a tight timeframe, Your
`
`Honor, with respect to our discovery period,
`
`because of the subsequent institution decision and
`
`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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`24 probably high on many people's list. However,
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`response before our reply is due.
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`WATSON LABORATORIES vs UNITED THERAPEUTICS 25
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`During that period of time, as it
`
`currently stands, we are going to be required to
`
`take at least ten depositions of declarants that
`
`have put in declarations so far. There may be
`
`additional declarations.
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`So with that kind of
`
`truncated discovery period,
`
`in light of the way the
`
`schedule shook out, we have to not only take these
`
`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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`And, apparently,
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`I learned this morning
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`as counsel indicated,
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`this is not a simple
`
`process of going to a court, a conference room in
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`Germany, but instead we apparently have to go
`
`through these formal processes. And I was,
`
`I
`
`guess, under the misimpression that Patent Owner
`
`was offering to make those arrangements. As of
`
`this morning,
`
`that additional burden was going to
`
`fall on us to get the depositions of their
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`22 long it takes to get these depositions done.
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`20
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`declarants.
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`21
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`With respect to the negotiations between
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`the parties, we have had them, as counsel said.
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`Owner bring their two paid consultants to the
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`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 COTTA: Okay.
`
`So just to
`
`summarize, it seems to me like the principal
`
`objection that Petitioner has to taking the
`
`26 One of the compromises we proposed was that Patent
`
`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?
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`MR. MATHAS: That's right, Your Honor,
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`the burden and inconvenience of doing that work.
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`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
`
`27
`
`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 oth