`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
`
`MODERNATX, INC.,
`Petitioner
`
`v.
`
`CUREVAC AG,
`Patent Owner
`_____________________
`
`Case IPR2017-02194
`Patent 8,383,340
`_____________________
`
`MODERNATX, INC.’S OBJECTIONS TO EVIDENCE
`
`
`
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`
`
`
`
`ModernaTX, Inc.’s Objections to Evidence
`Case IPR2017-02194
`
`
`Petitioner, ModernaTX, Inc. (“Moderna”), objects under the Federal Rules
`
`of Evidence (FRE) and 37 C.F.R. § 42.64(b)(1) to the admissibility of Exhibits
`
`2012-2014 and 2016 (the “Challenged Evidence”), filed by Patent Owner CureVac
`
`Ag (“CureVac”) on July 18, 2018, with its Patent Owner Response. Rule
`
`42.64(b)(1) provides that any objection must be filed within five business days of
`
`service; therefore, Moderna’s Objections to Evidence are timely. Moderna files
`
`these objections to provide notice to CureVac that Moderna may move to exclude
`
`the Challenged Evidence under 37 C.F.R. § 42.64(c), unless cured by CureVac.
`
`I.
`
`IDENTIFICATION OF GROUNDS FOR OBJECTIONS
`
`Exhibit 2012 purports to be the “Declaration of Mariola Fotin-Mleczek,
`
`Ph.D.” Moderna objects to paragraphs 14-22 and 24 in Exhibit 2012 under FRE
`
`402 and FRE 403. CureVac does not cite any of these paragraphs in its Patent
`
`Owner Response or other case documents, rendering Dr. Fotin-Mleczek’s
`
`testimony in these paragraphs irrelevant under FRE 401. Moderna therefore objects
`
`to these paragraphs under FRE 402. Moderna also objects to these paragraphs
`
`under FRE 403 because they have no probative value, create unfair prejudice to
`
`Moderna, and will only confuse the issues and waste the Board’s time. Moderna
`
`also objects to Exhibit 2012 under FRE 702 and FRE 703; Dr. Fotin-Mleczek
`
`purports to describe experiments and the resultant data, but Dr. Fotin-Mleczek only
`
`- 1 -
`
`
`
`ModernaTX, Inc.’s Objections to Evidence
`Case IPR2017-02194
`
`provides summaries of purported data and does not provide sufficient experimental
`
`detail or raw data from the experiments—i.e., “the underlying facts or data on
`
`which the opinion is based.” 37 C.F.R. §42.65(a).
`
`Exhibit 2013 purports to be the “Declaration of Moritz Thran, Ph.D.”
`
`Moderna objects to paragraphs 10, 11, and 21-22 in Exhibit 2013 under FRE 402
`
`and FRE 403. CureVac does not cite any of these paragraphs in its Patent Owner
`
`Response or other case documents, rendering Dr. Thran’s testimony in these
`
`paragraphs irrelevant under FRE 401. Moderna therefore objects to these
`
`paragraphs under FRE 402. Moderna also objects to these paragraphs under FRE
`
`403 because they have no probative value, create unfair prejudice to Moderna, and
`
`will only confuse the issues and waste the Board’s time. Moderna also objects to
`
`Exhibit 2013 under FRE 702 and FRE 703; Dr. Thran purports to describe
`
`experiments and the resultant data, but Dr. Thran only provides summaries of
`
`purported data and does not provide sufficient experimental detail or raw data from
`
`the experiments—i.e., “the underlying facts or data on which the opinion is based.”
`
`37 C.F.R. §42.65(a).
`
`Exhibit 2014 purports to be the “Declaration of Alexander Schwenger,
`
`Ph.D.” Moderna objects to paragraphs 11-14 in Exhibit 2014 under FRE 402 and
`
`FRE 403. CureVac does not cite any of these paragraphs in its Patent Owner
`
`- 2 -
`
`
`
`Response or other case documents, rendering Dr. Schwenger’s testimony in these
`
`ModernaTX, Inc.’s Objections to Evidence
`Case IPR2017-02194
`
`
`paragraphs irrelevant under FRE 401. Moderna therefore objects to these
`
`paragraphs under FRE 402. Moderna also objects to these paragraphs under FRE
`
`403 because they have no probative value, create unfair prejudice to Moderna, and
`
`will only confuse the issues and waste the Board’s time. Moderna also objects to
`
`Exhibit 2014 under FRE 702 and FRE 703; Dr. Schwenger purports to describe
`
`experiments and the resultant data, but Dr. Schwenger only provides summaries of
`
`purported data and does not provide sufficient experimental detail or raw data from
`
`the experiments—i.e., “the underlying facts or data on which the opinion is based.”
`
`37 C.F.R. §42.65(a).
`
`Exhibit 2016 purports to be the “Second Declaration of František Švec,
`
`Ph.D.” Moderna objects to paragraphs 9-11, 13, 20-21, 29, 43-49, 51-53, 55-56,
`
`60, 64, 66-74, 76-78, and 80-81 in Exhibit 2016 under FRE 402 and FRE 403.
`
`CureVac does not cite any of these paragraphs in its Patent Owner Response or
`
`other case documents, rendering Dr. Švec’s testimony in these paragraphs
`
`irrelevant under FRE 401. Moderna therefore objects to these paragraphs under
`
`FRE 402. Moderna also objects to these paragraphs under FRE 403 because they
`
`have no probative value, create unfair prejudice to Moderna, and will only confuse
`
`the issues and waste the Board’s time.
`
`- 3 -
`
`
`
`ModernaTX, Inc.’s Objections to Evidence
`Case IPR2017-02194
`
`Moderna objects to Exhibits 2033 and 2034 under FRE 901 because Exhibits
`
`2033 and 2034 are unauthenticated documents and are not self-authenticating
`
`documents under FRE 902. These documents are labeled as “Author Manuscript”
`
`rather than as a published article, and CureVac has not provided evidence that
`
`Exhibits 2033 and 2034 are admissible under FRE 1003 as duplicates of published
`
`articles.
`
`II. CONCLUSION
`
`To the extent CureVac fails to correct the defects associated with the
`
`Challenged Evidence in view of Moderna’s objections herein, Moderna may file a
`
`motion to exclude the Challenged Evidence under 37 C.F.R. § 42.64(c).
`
`
`
`
`Date: July 25, 2018
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
`(202) 371-2600
`9705378_1.docx
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`
`/DAVID W. ROADCAP/
`David W. Roadcap
`Registration No. 68,956
`Back-up Counsel for Petitioner
`
`
`- 4 -
`
`
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE (37 C.F.R. §§ 42.6(e))
`
`The undersigned hereby certifies that the above-captioned “ModernaTX,
`
`Inc.’s Objections to Evidence” was served in its entirety on July 25, 2018, upon the
`
`following parties via email:
`
`Teresa Stanek Rea
`Deborah H. Yellin
`Shannon M. Lentz
`CROWELL & MORING LLP
`1001 Pennsylvania Avenue, N.W.
`Washington, D.C. 20004-2595
`trea@crowell.com
`dyellin@crowell.com
`slentz@crowell.com
`
`
`
`
`
`
`
`Date: July 25, 2018
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
`(202) 371-2600
`
`
`
`David L. Parker
`Marshall P. Byrd
`PARKER HIGHLANDER PLLC
`1120 S. Capital of Texas Highway,
`Building One, Suite 200
`Austin, TX 78746
`dparker@phiplaw.com
`mbyrd@phiplaw.com
`
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/DAVID W. ROADCAP/
`David W. Roadcap
`Registration No. 68,956
`Back-up Counsel for Petitioner
`
`
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
