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`UNITED STATES PATENT AND TRADEMARK OFFICE
`___________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`INITIATIVE FOR MEDICINES, ACCESS & KNOWLEDGE (I-MAK), INC.
`Petitioner
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`v.
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`GILEAD PHARMASSET LLC
`Patent Owner
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`___________
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`Case No. IPR2018-00123
`U.S. Patent No. 8,735,372
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`___________
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`PETITIONER’S REQUEST FOR REHEARING
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`Petitioner Initiative for Medicines, Access & Knowledge (I-MAK), Inc.
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`(“Petitioner”) respectfully requests rehearing of the Board’s Decision Denying
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`Institution of Inter Partes Review (“IPR”) of Gilead Pharmasset LLC’s (“Gilead”)
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`U.S. Patent 8,735,372 (“the ’372 patent”) (“Decision”; Paper 7) because the Board
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`misapprehended or overlooked that Sofia (Ex. 1012) is a printed publication.
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`Notably, Patent Owner has never disputed that Sofia is a printed publication
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`as of September 2007, either in this matter or any of the related matters where
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`Sofia is also of record, e.g. IPR2018-00119 (Ex. 1004) and IPR2018-00121 (Ex.
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`1004). The Board also did not dispute that Sofia was a printed publication in any of
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`those other matters. The Board’s finding in this matter that Sofia is not a printed
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`publication as of September 2007 thus stands alone and contradicts both Patent
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`Owner’s implicit concessions and the Board’s previous findings that it is.
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`Further, the Internet Archive’s Wayback Machine confirms Sofia was
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`published on Patent Owner’s own website by at least October 5, 2007. Ex. 1014
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`(printouts
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`of
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`https://web.archive.org/web/20071005041918/
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`http://investor.pharmasset.com:80/events.cfm and PDF reached by link labelled as
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`“View Phosphoramidates presentation” under “Sep 10, 2007”). Petitioner has
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`requested an affidavit from the Internet Archive to attest to that fact and will seek
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`leave to submit that affidavit as supplemental evidence as soon as it is received.
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`However, there is no doubt it will state, as the Board has received such affidavits in
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`the past, see, e.g., IPR2017-00677, Paper 32, p. 46, and the Internet Archive
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`publishes its Standard Affidavit for such requests. Ex. 1015 (printout of
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`https://archive.org/legal/affidavit.php). Namely, the affidavit will state:
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`2. The Internet Archive is a website that provides access to a digital
`library of Internet sites and other cultural artifacts in digital form. Like
`a paper library, we provide free access to researchers, historians,
`scholars, and the general public. The Internet Archive has partnered
`with and receives support from various well-known institutions and
`libraries, including the Library of Congress.
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`3. The Internet Archive has created a service known as the Wayback
`Machine. The Wayback Machine makes it possible to surf more than
`400 billion pages stored in the Internet Archive's web archive. Visitors
`to the Wayback Machine can search archives by URL (i.e., a website
`address). If archived records for a URL are available, the visitor will
`be presented with a list of available dates. The visitor may select one
`of those dates, and then begin surfing on an archived version of the
`Web. The links on the archived files, when served by the Wayback
`Machine, point to other archived files (whether HTML pages or
`images). If a visitor clicks on a link on an archived page, the Wayback
`Machine will serve the archived file with the closest available date to
`the page upon which the link appeared and was clicked.
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`4. The archived data made viewable and browseable by the Wayback
`Machine is compiled using software programs known as crawlers that
`surf the Web and automatically store copies of website files,
`preserving these files as they exist at the point of time of capture.
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`5. The Internet Archive assigns a URL on its site to the archived files
`in the format http://web.archive.org/web/[Year in yyyy][Month in
`mm][Day in dd][Time code in hh:mm:ss]/[Archived URL]. Thus, the
`Internet
`Archive
`URL
`http://web.archive.org/web/19970126045828/http://www.archive.org/
`would be the URL for the record of the Internet Archive home page
`HTML file (http://www.archive.org/) archived on January 26, 1997 at
`4:58 a.m. and 28 seconds (1997/01/26 at 04:58:28). A web browser
`may be set such that a printout from it will display the URL of a web
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`page in the printout's footer. The date assigned by the Internet Archive
`applies to the HTML file but not to image files linked therein. Thus
`images that appear on the printed page may not have been archived on
`the same date as the HTML file. Likewise, if a website is designed
`with "frames," the date assigned by the Internet Archive applies to the
`frameset as a whole, and not the individual pages within each frame.
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`Ex. 1015.
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`Thus, here, the Wayback Machine proves that Patent Owner’s own website
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`published Sofia no
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`later
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`than October 5, 2007, because
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`the URL
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`is
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`https://web.archive.org/web/20071005041918/http://investor.pharmasset.com:80/e
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`vents.cfm that embeds the date October 5, 2007. Ex. 1014.
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`Petitioner asked Patent Owner to stipulate that Sofia was published on its
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`own website in September 2007, but Patent Owner refused. Ex. 1016. Petitioner
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`made this request because the Internet Archive is a not-for-profit with limited
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`resources that asks requesters to first seek a stipulation as to when documents
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`within its archive were published. Ex. 1017. The Internet Archive also says the
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`“best source” for such information is the owner of the website. Ex. 1017.
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`Specifically:
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`Before asking the Internet Archive to authenticate your documents,
`we ask that you please seek judicial notice or simply ask your
`opposing party to stipulate to the documents' authenticity. Of course,
`the best source of such information is the party who posted the
`information on the URLs at issue, and the second-best source of such
`information is someone who actually accessed the historical versions
`of the URLs.
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`See Ex. 1017 (print out of https://archive.org/legal/). Here, the best party to
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`stipulate to the date Sofia was published is Patent Owner. Its refusal to stipulate to
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`an easily demonstrable fact, and instead forcing a resourced strapped non-profit to
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`prepare an affidavit on the issue, is litigation gamesmanship the Board should
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`neither support nor encourage. Petitioner has indeed informed Patent Owner that,
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`“Petitioner believes Patent Owner's failure to provide material information
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`regarding the patentability of its claims may be a violation of its duty candor and
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`good faith to the board.” Ex. 1016.
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`For the foregoing reasons, Petitioner respectfully requests that the Board
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`rehear its decision denying institution and institute a trial on all challenged claims.
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`Respectfully submitted,
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`/Daniel B. Ravicher/
`Daniel B. Ravicher (Reg. No. 47,015)
`RAVICHER LAW FIRM PLLC
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`Counsel for Petitioner
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`4
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`Dated: July 13, 2018
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`I.
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`CERTIFICATE OF SERVICE
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`I certify that on the date indicated below I caused a true and correct copy of
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`the foregoing PETITIONERS’ REQUEST FOR REHEARING to be served on
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`counsel for Patent Owner by filing through the PTAB – E2E system as well as by
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`electronic mail to the following email addresses:
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`Dated: July 13, 2018
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`whelan@fr.com
`kane@fr.com
`shear@fr.com
`IPR36583-0020IP6@fr.com
`PTABInbound@fr.com
`david.cavanaugh@wilmerhale.com
`emily.whelan@wilmerhale.com
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`/Daniel B. Ravicher/
`Daniel B. Ravicher (Reg. No. 47,015)
`RAVICHER LAW FIRM PLLC
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`Counsel for Petitioner
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