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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`KVK-Tech, Inc.,
`Petitioner,
`
`v.
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`Shire LLC,
`Patent Owner.
`
`Case IPR2018-00293
`Patent 9,173,857
`
`PETITIONER’S OBJECTIONS AND MOTION TO
`EXCLUDE
`
`Patent Trial and Appeal Board
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`1
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`
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`Petitioner hereby objects and moves to exclude Patent Owner’s Exhibit No.
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`2083 and a portion of Exhibit No. 2082 as improper new evidence submitted on
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`March 7, 2019 with its sur-reply brief.
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`The Board on February 25, 2019 (Paper 36) ruled that no additional evidence
`
`shall be submitted with Patent Owner’s sur-reply brief except for evidence relating
`
`to the credibility of Petitioner’s additional declarant (Dr. McCracken). The Order
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`reflected the parties’ agreement, as noted in the Order.
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`I.
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`Exhibit 2083
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`Exhibit 2083 is a 2009 publication authored by Swanson et. al, none of whom
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`are Petitioner’s Declarant, Dr. McCracken. Patent Owner relies on this publication
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`on page 9 of its sur-reply.
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`Evidence of impeachment or of a witnesses’ credibility is governed by the
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`Federal Rules of Evidence, and consists of evidence of the witnesses’ character or
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`reputation (F.R.E 608(a)), the witnesses’ prior conduct (F.R.E 608(b)), or the
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`witnesses’ prior inconsistent statements (F.R.E. 613). None of these categories are
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`applicable here.
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`Exhibit 2083 is a publication, not authored by Dr. McCracken, or addressing
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`Dr. McCracken’s conduct, character or reputation. Nor can Patent Owner point to
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`any inconsistent statement by Dr. McCracken in Exhibit 2083 as he is not quoted in
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`the reference. Therefore, Exhibit 2083 cannot be evidence of Dr. McCracken’s
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`credibility. Patent Owner may point to statements in Exhibit 2083 that Dr.
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`2
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`
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`McCracken disagrees with, but that is not impeachment evidence. Patent Owner’s
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`submission of Exhibit 2083 with Patent Owner’s sur-reply brief is contrary to the
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`Board’s Order and the agreement of the parties, and thus should be excluded.
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`II. Exhibit 2082
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`For the same reason, Petitioner objects and moves to exclude the portion of
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`the deposition transcript of Dr. McCracken (Exhibit 2082, p. 184 line 4 – p. 186,
`
`line 24) in which Patent Owner asked Dr. McCracken to read portions of Exhibit
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`2083 into the record. Exhibit 2082 was also submitted with Patent Owner’s sur-reply
`
`brief, and Patent Owner relied on the relevant portion from the transcript on pages 5
`
`and 9 of the sur-reply brief. Patent Owner’s deliberate insertion into exhibit 2083 of
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`quotations from an improperly submitted exhibit should also be excluded.
`
`
`
`Dated: March 7, 2019
`
`
`
`Respectfully submitted,
`
`
`
`
`
`/s/Steven Roth/
`Steven Roth, PTO Reg. No. 47,039
`Lucas & Mercanti, LLP
`
`3
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`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that, pursuant to 37 C.F.R. §§ 42.6(e) a
`
`copy of the foregoing PETITIONER’S OBJECTIONS AND MOTION TO
`
`EXCLUDE as served electronically via email on March 7, 2019 on the following:
`
`Joseph R. Robinson
`Troutman Sanders LLP
`875 Third Avenue
`New York, NY 10022
`joseph.robinson@troutmansanders.com
`
`Dustin B. Weeks
`Troutman Sanders LLP
`Bank of America Plaza
`600 Peachtree Street NE, Suite 5200
`Atlanta, GA 30308-2231
`dustin.weeks@troutmansanders.com
`
`Robert Schaffer
`Troutman Sanders LLP
`875 Third Avenue New
`York, NY 10022
`robert.schaffer@troutmansanders.com
`Patent Owner has consented to electronic service.
`
`Date: March 7, 2019
`
`
`
`By:
`
`
`
`/Steven Roth/
`Steven Roth
`Reg. No. 47,039
`
`4
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`
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