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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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`SANOFI PASTEUR INC. AND SK CHEMICALS CO., LTD.,
`Petitioner,
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`v.
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`PFIZER INC.,
`Patent Owner.
`____________
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`Case IPR2018-00187
`Patent 9,492,559 B2
`___________
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`Record of Oral Hearing
`Held: February 12, 2019
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`Before TONI R. SCHEINER, JEFFREY N. FREDMAN, and
`JACQUELINE T. HARLOW, Administrative Patent Judges.
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`Case IPR2018-00187
`Patent 9,492,559 B2
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`APPEARANCES:
`ON BEHALF OF THE PETITIONER:
`SIEGMUND Y. GUTMAN, ESQUIRE
`FANGLI CHEN, Ph.D., ESQUIRE
`ANDREJ BARBIC, Ph.D., ESQUIRE
`Proskauer Rose, LLP
`2029 Century Park East
`Suite 2400
`Los Angeles, California 90067
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`ON BEHALF OF PATENT OWNER:
`JOHN SCHEIBELER, ESQUIRE
`ERIC KRAUSE, ESQUIRE
`White & Case, LLP
`1221 Avenue of the Americas
`New York, New York 10020-1095
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`The above-entitled matter came on for hearing on
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`Tuesday, February 12, 2019, commencing at 1:00 p.m., at the
`U.S. Patent and Trademark Office, 600 Dulany Street,
`Alexandria, Virginia.
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`Case IPR2018-00187
`Patent 9,492,559 B2
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`P R O C E E D I N G S
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`JUDGE FREDMAN: Good afternoon. I think we are
`here with regard to the matter of Sanofi and SK Chemicals versus
`Pfizer, IPR2014-00187, patent 9,492,559. Can I take a roll call
`from petitioner, then from patent owner, please.
`MR. GUTMAN: Good morning, Your Honors.
`Siegmund Gutman of Proskauer Rose for petitioners, Sanofi
`Pasteur and SK Chemicals. And with me are my colleagues,
`Fangli Chen, Andrej Barbic, Kimberly Li, Dan Werb, and from
`Sanofi Pasteur, Tricia Callanan.
`JUDGE FREDMAN: Thank you.
`MR. SCHEIBELER: Good morning, Your Honors.
`John Scheibeler of White & Case, LLP on behalf of the patent
`owner, Pfizer, Inc. With me from White & Case are Eric Krause,
`Pan Lee, Brendan Gavin, and also with us from Pfizer are Matt
`Pugmire and Keith Hutchison. Thank you, Your Honors.
`JUDGE FREDMAN: I just want to remind the parties
`that Judge Harlow is on remote, and so when you identify your
`slides, if you'd do that by exhibit number and page number and
`make sure you speak into the microphone so that she can hear
`you. Any other things I should remind them of?
`JUDGE HARLOW: Not from me.
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`JUDGE FREDMAN: And I'm just going to read the
`order of the proceedings from the hearing order. Petitioner will
`open the hearing and may present arguments regarding any of the
`challenged claims or grounds and the motion to amend.
`Petitioner may reserve some but not more than half of its
`argument time to respond to arguments presented by patent
`owner. After petitioner's initial presentation, patent owner will be
`given an opportunity to respond to petitioner's arguments, to
`address the motion to amend even if petitioner has not done so.
`Patent owner will be permitted to reserve some of its time for
`surrebuttal. Thereafter, petitioner may use any reserved time to
`rebut patent owner's presentation. And finally, patent owner may
`present a brief sur-sur-rebuttal if it has reserved time.
`And then just lastly, if you really want to object to
`someone's demonstrative, you are welcome to do so. We are
`aware that you can't introduce a new matter into this proceeding.
`Thank you, and if petitioner would begin when you are ready.
`MR. GUTMAN: Good morning, Your Honors. Good
`morning, Judge Harlow. Actually, I guess it's afternoon. I'm
`from California, so it seems like morning to me. Just as a
`preliminary matter, there are some pending objections in this case
`that I believe the Board had deferred to the oral hearing. Would
`it be your preference to address those now before the
`presentations?
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`JUDGE FREDMAN: If you feel the need to address
`them, it's fine, but I don't think that -- we will understand -- you
`can point to the things. We know what you are alleging, and we
`can decide if that's really appropriate or not when we are
`reviewing the evidence as a whole. You are welcome to make the
`argument if you want.
`MR. GUTMAN: So we've submitted objections.
`Would it be your preference that, for example, during
`respondent's presentation that we stand up and object to slides?
`JUDGE FREDMAN: I don't think so. We understand
`what the objections are. We are familiar with the evidence.
`MR. GUTMAN: Okay. Great. I have three copies of
`our petitioner's slides. May I approach to hand these up?
`JUDGE FREDMAN: Yes.
`MR. GUTMAN: Judge Harlow, would you like me to
`set aside a hard copy of petitioner's demonstratives?
`JUDGE HARLOW: No, thank you. I prefer an
`electronic copy.
`JUDGE FREDMAN: Maybe you can leave the last
`copy with the court reporter.
`MR. GUTMAN: Before I get started, Your Honors, I
`would like to reserve 25 minutes for rebuttal and 5 minutes for
`sur-rebuttal, please.
`JUDGE FREDMAN: Okay. Thank you.
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`MR. GUTMAN: So getting started with slide 2, please,
`as Your Honors are aware, this case involves a claimed
`immunogenic composition comprising a 22F glycoconjugate that
`has a molecular weight in a very broad range of between 1,000
`kilodaltons and 12,500 kilodaltons wherein the ratio of the
`polysaccharide to carrier protein determined weight-by-weight is
`between 0.4 and 2, again, a very broad range.
`As I'm sure Your Honors are aware, petitioner's position
`is that the immunogenic composition comprising the 22F
`glycoconjugate was known in the prior art. Specifically we'll be
`talking a lot about GSK-711 which is Exhibit 1007. And within
`GSK-711, GSK discloses an immunogenic composition
`comprising a 22F glycoconjugate -- a 22F glycoconjugate that has
`the claimed polysaccharide-to-carrier protein ratio between 0.4
`and 2. And with respect to the molecular weight range,
`petitioner's position is that the claimed molecular weight would
`have been reasonably expected by a person of ordinary skill in the
`art. Which I'll refer to as a POSA during the presentation, to be
`within that range, and alternatively, that a person of ordinary skill
`in the art, a POSA, would have been motivated to generate an
`immunogenic composition having the 22F glycoconjugate within
`the molecular weight range with a reasonable expectation of
`success.
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`Slide 17, please. So this is table 2 from Exhibit 1007,
`which is referred to as GSK-711 in petitioner's papers. And as
`Your Honors can see, this table discloses various serotypes of
`polysaccharides that have been conjugated to a number of
`different carrier proteins. And more particularly, you'll see within
`the red box that there is a 22F polysaccharide that has been
`conjugated to a carrier protein referred to as PhtD.
`One thing to note is that in the third column from the
`left there is a disclosed carrier-to-polysaccharide ratio which is
`2.17, which as calculated, would refer to a
`carrier-protein-to-polysaccharide ratio of 0.46 which is squarely
`within the claimed range.
`With respect to the molecular weight of this 22F
`glycoconjugate, as I'll describe in more detail later, one of
`ordinary skill in the art would have expected, in view of all of the
`other serotypes disclosed in this table which fall within the
`molecular weight range, all of those glycoconjugates. In view of
`that, one of ordinary skill in the art would have reasonably
`expected to -- that the disclosed 22F glycoconjugate in this table
`would also fall within the very broad --
`JUDGE FREDMAN: The table doesn't show the
`glycoconjugates for either of the 22F conjugates, right?
`MR. GUTMAN: That's correct, Your Honor. Our
`position is that one of ordinary skill in the art, in reading the
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`disclosure as well as the other references identified by petitioners,
`would have reasonably expected that the molecular weight of that
`glycoconjugate as the others would fall within the claimed -- the
`broad claimed range.
`JUDGE FREDMAN: Is there any concern about
`immunogenicity given that we have 37 percent and 28 to
`31 percent for the 22Fs and most of the rest of them are
`significantly higher than that?
`MR. GUTMAN: No, Your Honor. We'll get to the
`immunogenicity of the different serotypes in a minute. One thing
`to note is that in the antigenicity column, which is the second one
`from the right, that is antigenicity which is slightly different from
`immunogenicity. But as disclosed in GSK-711, the 22F
`glycoconjugate was found to be immunogenic under the
`construction that was decided by the Board in its institution
`decision. So in other words, the 22F glycoconjugate disclosed in
`table 2 and in other places in GSK-711 elicited functional
`antibodies in accordance with the Board's claim construction of
`immunogenic.
`So the other point which I referred to, which again, I'll
`get into more detail later in the presentation is that even if one of
`ordinary skill in the art did not reasonably expect, which is not
`the case, but even if one of ordinary skill in the art did not
`reasonably expect that the disclosed 22F glycoconjugate would
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`fall within the claimed range even though all the other
`glycoconjugates in this table fall within the claimed range, which
`is not surprising given the breadth of the claimed range, that the --
`that one of ordinary skill in the art would have been motivated to
`generate a 22F glycoconjugate within the molecular weight range
`and would have used routine optimizable tools in terms of
`conjugation chemistry and purification columns to have actually
`generated a 22F glycoconjugate that falls within the molecular
`weight range and having done so with a reasonable expectation of
`success.
`Slide 48, please. So Judge Fredman, this is a slide that
`answers your question. On the left is a Figure 6 from GSK-711,
`Exhibit 1007. And as you can see in the blue box caption, that is
`showing the OPA result which demonstrates the functionality of
`the antibody. And you can see that it's about or above 1,000.
`Something that I think is worth noting is that on the
`right is the disclosure from the '559 patent in table 18 that shows
`the OPA response for different 22F glycoconjugates disclosed in
`the '559 patent. And when you look at the column on the left,
`which Pfizer has described as showing the immunogenicity of
`those serotypes, those are significantly lower responses than the
`1,000 response that was demonstrated for the 22F PhtD
`glycoconjugate disclosed in GSK-711.
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`JUDGE FREDMAN: Are those using the same amount
`of antigen?
`MR. GUTMAN: It doesn't matter only because the
`claims don't require a specific amount of antigen --
`JUDGE FREDMAN: But when you are making a
`comparison like that, you look at the .01 versus .001 microgram
`amount to see that there's a lot more than .01 microgram. While I
`agree it may not matter for purposes of the claims precisely, to
`say that the number shown in GSK-711 is the same as the '599, it
`would be more precise if the same amounts were being used.
`MR. GUTMAN: My understanding, Your Honor -- and
`during a break I'll confirm this for you, and when I come back on
`sur-rebuttal I'll be able to provide a more specific answer. My
`understanding is that it is either the same as the .001 micrograms
`that was administered in the left part of the column or it was the
`.01 micrograms in the right column. One thing to note is that the
`.01 micrograms disclosed in the '559 patent also has an OPA
`response of 252 which is also significantly lower than the 22F
`glycoconjugate disclosed in GSK-711.
`And the important thing to note is that Pfizer had
`described that level of immunogenicity as being immunogenic.
`So the point being that there really is no dispute that the 22F
`glycoconjugate disclosed in GSK-711 is immunogenic, and I
`think my colleagues at Pfizer would agree with that.
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`Going to slide 67, I apologize that I'm popping around a
`little bit. So one of the things that is worthy of being noted is
`obviously the ranges for the ratio and the molecular weight that is
`recited in the original claims are very broad. And so what did
`Pfizer and what did other players within the industry do prior to
`the earliest effective filing date of the patent? And this is a chart
`that demonstrates that very nicely.
`So in this table what you see is you see various
`serotypes that are recited in all of the different original claims.
`So the column on the left are the original claims. The column
`recited serotype are the different serotypes recited in the claims.
`We'll come back to this table later when we talk about the
`dependent claims. PCV7, which is Prevnar, you can see that
`there are various serotypes included in Prevnar 7. You can see
`that there are various serotypes included in Synflorix, which is a
`decavalent glycoconjugate composition. Prevnar 13, you can see
`there are additional serotypes added. And in Merck PCV15, you
`can see there are additional serotypes added. So there has been a
`pattern prior to the earliest effective filing date of the '559 patent
`that people who are developing multivalent glycoconjugate
`compositions are looking at Pneumovax 23, which is on the right
`column. And Pneumovax 23 is not a polysaccharide carrier
`protein glycoconjugate vaccine. It's simply a polysaccharide
`multivalent vaccine.
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`But one of the things to note is that those serotypes in
`Pneumovax 23, and this is evidenced in the record, includes
`serotypes, obviously, that have already been identified as being
`immunogenic. So one of ordinary skill in the art is looking at
`Pneumovax 23. They are saying here is an immunogenic
`polysaccharide, and they recognize the advantage, the benefit of
`now taking those serotypes and conjugating them to a carrier
`protein to make immunogenic compositions that are more
`efficacious for the very young, like infants or the elderly, people
`over 65. And that's one of the benefits of having the
`glycoconjugate vaccines.
`And so as you can see, over the course of time people --
`persons of ordinary skill in the art are just adding more and more
`serotypes from Pneumovax 23. And what they are doing is they
`are starting out with an immunogenic polysaccharide that is
`known to be immunogenic, including 22F, and they are using
`routine conjugation chemistry in order to generate immunogenic
`glycoconjugates. And then they are adding those new
`immunogenic glycoconjugates to already established multivalent
`compositions using, again, routine methods.
`And this is all being done with a reasonable expectation
`of success, because as you can see, over time prior to the earliest
`effective filing date, POSAs were successful at continuing to add
`more and more serotypes. So this process of increasing the
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`valency of immunogenic compositions is being done and it's
`being done successfully before the effective filing date.
`Slide 115, please. Now, one of the things that enhances
`the reasonable expectation of success of a POSA in increasing the
`valency of an immunogenic composition by adding new
`glycoconjugates that were made from immunogenic
`polysaccharides that had already been identified in Pneumovax
`23 is the carrier protein CRM197 which I'll refer to as CRM197.
`And what's interesting about this is a statement by Dr. Paradiso,
`which is Pfizer's expert -- one of Pfizer's experts in this case, in a
`2009 publication, and I'll just quote it. It says, With conjugates
`on CRM197 it has been possible to induce good immunity to new
`serotypes without negatively affecting the components already in
`the vaccine.
`So what Dr. Paradiso was saying in 2009, five years
`before the earliest effective filing date of the '559 patent, is that
`using CRM197 facilitates your ability to increase the valency of
`already-made immunogenic compositions.
`JUDGE FREDMAN: In fairness, Dr. Paradiso is not
`talking about serotype 22F. He doesn't specifically call that one
`out in his paper.
`MR. GUTMAN: That's true, Your Honor. He doesn't
`call that one out in his paper because it's not a serotype-specific
`effect. What Dr. Paradiso is describing in his paper is the overall
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`benefit of using CRM197 without regard to the serotype. And by
`the way, there's no evidence in the record, none whatsoever, that
`the 22F serotype presents any sort of unique problems or specific
`concerns that differentiate it from other serotypes. And as we've
`seen, there's been a pattern of introducing other serotypes
`specifically into already-existing immunogenic compositions.
`Going to slide 10, so slide 10 is really just
`demonstrating what I'm sure Your Honors already appreciate
`from having reviewed the patent, which is the claimed ranges are
`really very broad, but there are even broader ranges disclosed in
`the patent. So what Pfizer has done is really just taken the
`broadest range that it believes is supported by the specification of
`the '559 patent and integrated that into its claims.
`Slide 8, please. So in slide 8, this is to demonstrate that
`the molecular weight and recited polysaccharide-to-carrier
`protein ratios, there is nothing critical about those ranges. So you
`see on slide 8 that Pfizer, for example, didn't make any
`glycoconjugates that fall outside the molecular weight range that
`allows them to say there's something critical or unexpected or
`surprising about the glycoconjugates that they made.
`And similarly, in the bottom you can see that there's
`wide variability in terms of the OPA response for the different
`samples having different molecular weights. So these ranges are
`just broad, noncritical ranges that are recited in the claim.
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`Slide 13. And Dr. Wang, during deposition, was asked
`about this. And his response was that you could have made an
`immunogenic 22F glycoconjugate that falls outside of the ratio
`that's described in claim 1, again, emphasizing the noncriticality
`of the range, because obviously, what a POSA will really be
`interested in is making an immunogenic composition.
`JUDGE FREDMAN: I'm not sure if he's saying that it
`would necessarily be. He's simply acknowledging that there's a
`possibility that it would be.
`MR. GUTMAN: Agreed, Your Honor. And I think
`that possibility is what emphasizes the noncriticality of the range.
`And there's no evidence that --
`JUDGE FREDMAN: I don't think there's evidence of
`secondary considerations. And patent owner can correct us if
`that's not correct.
`MR. GUTMAN: Yes. So turning to slide 35, focusing
`again on the molecular weight range, Dr. Wang admitted during
`deposition -- Dr. Wang is another Pfizer expert in this matter --
`that you don't want the glycoconjugate to be too small because it
`may not elicit a strong enough immunogenic response. And
`similarly, you don't want it to be too big, because if it's too big, it
`can gel and it will be a mess and you won't be able to do anything
`with it, including running purification columns, which I'll get to
`in a minute.
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`Slide 36, please. So in 36, there are a few reasons,
`again, going to the motivation and expectation of following above
`the lower limit of the disclosed range. One of ordinary skill in
`the art, as Your Honors know from our papers, would expect that
`the smallest lattice structure for a 22F glycoconjugate would
`likely fall above 1,000. So that's two polysaccharides conjugated
`to one carrier protein would likely fall above 1,000. So that's the
`theoretical lower limit.
`And similarly, one of ordinary skill in the art, in terms
`of being motivated to generate a glycoconjugate above that lower
`limit of 1,000 kilodaltons, could rely on this rule of thumb that in
`order to achieve effective purification between the
`glycoconjugate and the unconjugated polysaccharides, you would
`want the glycoconjugate to be large enough so that it could be
`differentiated or purified away from the unconjugated
`polysaccharides which could have a nonbeneficial effect on the
`overall immunogenic composition. And so those are really
`demonstrating why a glycoconjugate should fall above 1,000, the
`lower limit of the recited range.
`Slide 40, please. So on slide 40, again, this is
`addressing the upper limit of the disclosed molecular weight
`range of 12,500 kilodaltons. Those are difficult to purify by
`column. Again, if they get much higher, above 12,500, they can
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`Patent 9,492,559 B2
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`JUDGE FREDMAN: In the prior art, in GSK-711,
`when it was purified, it was using a .2-micron filter, wasn't it?
`MR. GUTMAN: It was using a .2-micron filter. But
`more significantly, it was using an analytical column which was
`used to determine the molecular weight distribution. And why
`don't we just head to that, which is slide 29. So in slide 29, this
`analytical column which is actually used to generate the size
`distribution of the glycoconjugate has an upper exclusion limit of
`10,000 kilodaltons or 10 million daltons. And significantly --
`JUDGE FREDMAN: Meaning that anything else
`would flow through the column and be separated, you mean?
`MR. GUTMAN: With this analytical column -- so there
`were two different columns used in GSK-711. One was a
`separation column which had a size exclusion limit of 8 million
`daltons or 8,000 kilodaltons, and with that, anything above that
`would flow through the column.
`With this analytical column where you are using this to
`really determine what the size distribution is for the
`glycoconjugates, you want an upper limit that is above what your
`expected size distribution is. So you would expect that the main
`peak within the distribution would fall below the upper limit of
`the exclusion limit of this column.
`JUDGE FREDMAN: So you'd have to go through the
`column rather than the first thing eluted out.
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`Case IPR2018-00187
`Patent 9,492,559 B2
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`MR. GUTMAN: Exactly. In fact, we see that that's the
`case. When you go back to table 2 of GSK-711, you see that all
`of the molecular weight ranges for each of the serotypes falls
`below the 10 million dalton exclusion limit for this column.
`JUDGE FREDMAN: Just for the record, a .2-micron
`filter would be what size, roughly?
`MR. GUTMAN: So a .2-micron filter, it would be -- it's
`hard to -- I don't know the answer to that, Your Honor. And the
`reason why I don't know the answer to that is because the size of
`the pore, which is .2 microns, will affect things of different
`shapes differently. So it really depends on what the molecular
`volume is of the glycoconjugate, and that will determine how that
`gets filtered.
`JUDGE FREDMAN: You have five more minutes left,
`just so you know.
`MR. GUTMAN: So going to the motion to amend now,
`and specifically slide 70, so slide 70 is claim 46, and one of the
`things to note is that it's including new serotypes relative to
`claim 1. But as I have said, it was a matter of routine skill to add
`new serotypes to existing immunogenic compositions, including
`those recited here which are also part of Pneumovax 23.
`And the element that I really want to focus on is the
`2-log increase. In terms of support in the patent, which Pfizer
`bears the burden in demonstrating, there is no support for the
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`Case IPR2018-00187
`Patent 9,492,559 B2
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`2-log increase. In column 123, lines 35 through 36, and column
`124, lines 60 through 61 of the patent -- I'll just continue talking.
`JUDGE SCHEINER: We do have the slides
`electronically.
`MR. GUTMAN: This actually is not a demonstrative.
`This is coming right out of the Exhibit 1001, which is the exhibit
`for the patent.
`JUDGE SCHEINER: Okay. We've got that as well.
`JUDGE FREDMAN: What column?
`MR. GUTMAN: So column 123, lines 35 through 36,
`and column 124, lines 60 to 61 are the only two places in the
`entire patent anywhere where a 2-log increase is mentioned. And
`what is observed in looking at those statements is just that Pfizer
`is simply acknowledging that they have achieved a 2-log
`increase. Nothing more. So they are not relating the 2-log
`increase to any structure in the claim. They are not relating the
`2-log increase to immunogenicity in the claim. It's simply an
`observation based on data generated in the table that the
`serotypes --
`JUDGE FREDMAN: So are you trying to argue that
`there's not possession of the idea of 2 logs? Are you trying to say
`that there's no criticality, so there's no unexpected result to
`support it?
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`Case IPR2018-00187
`Patent 9,492,559 B2
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`MR. GUTMAN: Well, all of the above and more. So
`we are saying there is no written description support. One of the
`reasons why there's no written description support is because the
`reference to a 2-log increase, whether you achieve that, which is a
`functional limitation, is untethered from any structure. So under
`the Federal Circuit law, Eli Lilly, trying to demonstrate
`patentability of a composition claim using functional language
`requires that the functional language be tethered to some claim
`structure or at least some disclosed structure in the patent. And
`here it's not tethered to anything. It's simply a functional
`limitation that is added to the claim that doesn't differentiate prior
`art compositions, for example, the compositions in Merck '086
`patent from those that are claimed in the '559 patent.
`JUDGE FREDMAN: Well, they require a particular
`molecular weight, a particular polysaccharide ratio, a particular
`adjuvant range that's required in this claim, in the amended claim.
`So there are requirements -- and the spec does say a 2-log
`increase in serum IgG levels across the 20 serotypes was induced
`following two immunizations. They have expressed literal
`support.
`MR. GUTMAN: Well, there's an ipsis verbis reference
`to a 2-log increase. We don't dispute that. Under the law, ipsis
`verbis support is not necessarily adequate to demonstrate written
`description support. And when you think about how this
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`Case IPR2018-00187
`Patent 9,492,559 B2
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`functional language in a composition claim is untethered, and
`actually Pfizer admitted this in a previous oral hearing in
`IPR2017-2131, 2132, 2136, 2138 at pages 86 to 87 of the
`transcript, that the 2-log reference recited in the claims is actually
`untethered to any structure. And the conclusion of that is that
`there cannot be written description support for a claim directed to
`a composition.
`Regarding the indefiniteness of that reference, which I
`can come back to later, there is evidence in the record that talks
`about how there are different things that one of ordinary skill in
`the art would do in looking at the 2-log increase in New Zealand
`White rabbits where there are changes to the baseline, changes to
`the dose, changes to the assay, all of which impact whether you
`achieve a 2-log increase.
`So not only is this a functional limitation untethered to
`any structure, but it's completely arbitrary. One of ordinary skill
`in the art looking at something that was -- a glycoconjugate that
`was demonstrated to fall below a 2-log increase could actually
`change the baseline, change the way that the serum levels of
`antibodies were detected, could change the dose, and that would
`have an impact on how -- on whether you achieved a 2-log
`increase. And none of those requirements are part of the claim.
`So a POSA looking at this claim would not know what sort of
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`Case IPR2018-00187
`Patent 9,492,559 B2
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`2-log increase was actually being referenced by the claim, which
`just, you know, adds additional, I think, strength.
`JUDGE FREDMAN: I think your time is about up. So
`I think we are ready to move to the next.
`MR. GUTMAN: Thank you, Your Honors.
`JUDGE FREDMAN: Would you like to reserve some
`time as well?
`MR. SCHEIBELER: Yes, please, Your Honor. It was
`a little unclear to me, but do I get rebuttal and sur-rebuttal?
`JUDGE FREDMAN: I think you get --
`MR. SCHEIBELER: The order seemed to just say I get
`rebuttal.
`JUDGE FREDMAN: You get an opportunity to
`respond to petitioner's arguments and address the motion to
`amend, and then you can, essentially after petitioner responds to
`you, you can respond.
`MR. SCHEIBELER: So I get two more times?
`JUDGE FREDMAN: Petitioner is only going to get
`one more shot. They are going to talk after you. And then -- you
`are right. I think it's just two more times, right.
`JUDGE SCHEINER: Petitioner will have an additional
`25 minutes and then 5 minutes for sur-rebuttal.
`JUDGE FREDMAN: So if you want to take time in
`between rebuttals, you can have a sur-rebuttal, yes.
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`Case IPR2018-00187
`Patent 9,492,559 B2
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`MR. SCHEIBELER: In that case, I would like to
`reserve 10 and 5.
`JUDGE SCHEINER: This has gotten confusing since
`the changes in motions to amend.
`JUDGE FREDMAN: We are trying to be fair to
`everybody. Okay. So you can go. So you'll have, I guess,
`45 minutes now.
`MR. GUTMAN: And just to -- I just want to make sure
`we are all on the same page, Your Honors. Petitioners would get
`the last word, I assume, given that it's our burden on both the --
`JUDGE SCHEINER: Yes. So you'll take 15 minutes in
`rebuttal and then you will have 5 minutes.
`JUDGE FREDMAN: That's right.
`JUDGE SCHEINER: Aqua Products has a lot to
`answer for.
`MR. SCHEIBELER: So they go three times and we go
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`twice.
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`JUDGE HARLOW: I'm just bad at -- I agree, yes, the
`petitioner will get the last word, but you will get to speak twice,
`Mr. Scheibeler. So 15-minute rebuttal for you. And that's
`book-ended on either side by petitioner's rebuttal and then
`sur-rebuttal.
`JUDGE SCHEINER: That is correct.
`JUDGE FREDMAN: We'll listen. Don't worry.
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