`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`AMNEAL PHARMACEUTICALS LLC AND
`AMNEAL PHARMACEUTICALS OF NEW YORK, LLC,
`Petitioners,
`
`v.
`
`ALMIRALL, LLC
`Patent Owner.
`
`
`Case IPR2018-00608
`Patent No. 9,161,926 B2
`
`
`
`
`
`
`
`
`
`PATENT OWNER’S REPLY IN SUPPORT OF ITS MOTION TO
`EXCLUDE EVIDENCE UNDER 37 C.F.R §42.64
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`IPR2018-00608
`Patent Owner’s Reply ISO Motion to Exclude
`
`I.
`
`ALMIRALL’S OBJECTIONS WERE TIMELY
`Petitioner did not serve Exhibits 1041–1048 on Almirall until March 18, 2019.
`
`See Paper 30 at 7 (Certificate of Service stating that “Exhibits 1034–1059, were
`
`served in their entirety on March 18, 2019, upon [Patent Owner] via email”).
`
`Almirall served objections on March 25, within five business days. Paper 32. This
`
`is timely. 37 C.F.R. § 42.64(b)(1) (“Once trial has been instituted, any objection
`
`must be filed within five business days of service of evidence to which the objection
`
`is directed.”).
`
`While Petitioner correctly quotes the rule requiring service of exhibits at a
`
`deposition, it has not shown that it did so. Nor did Almirall’s counsel
`
`acknowledge that any exhibits were being served at Dr. Harper’s deposition, as
`
`Petitioner asserts. See Paper 38 at 4 (citing Ex. 1049 at 152:20–153:3). As the
`
`record shows, Almirall’s counsel asked whether the exhibit handed to Dr. Harper
`
`was “on file,” to which Petitioner’s counsel responded that it was not, but would
`
`be. Ex. 1049 at 152:15–153:3.
`
`II. EXHIBITS 1041–1048 ARE NOT SELF-AUTHENTICATING
`As the Board has explained, “[p]rintouts from websites are not self-
`
`authenticating.” Xactware Solutions, Inc. v. Pictometry Int’l Corp., Case IPR2016-
`
`00594, slip op. at 11–12 (PTAB Aug. 24, 2017) (Paper 46). In order “[t]o
`
`authenticate printouts from a website, the party offering the evidence must produce
`
`1
`
`
`
`IPR2018-00608
`Patent Owner’s Reply ISO Motion to Exclude
`
`some statement or affidavit from someone with knowledge of the website . . . for
`
`example a web master or someone else with personal knowledge.” Standard
`
`Innovation Corp. v. Lelo, Inc., Case IPR2014-00148, slip op. at 10 (PTAB Apr. 23,
`
`2015) (Paper 41) (quoting EMC Corp. v. Personalweb Techs., LLC, Case
`
`IPR2013-00084, slip op. at 45 (PTAB May 15, 2014) (Paper 64)); accord
`
`Xactware Solutions, slip op. at 11–12. Petitioner has not done so. Dr. Harper’s
`
`testimony generally stating that the amounts physicians are paid by pharmaceutical
`
`companies are available through the Sunshine Act, Ex. 1049 at 34:16–35:6, is not
`
`evidence that the website printouts provided by Petitioner are authentic. Nor is her
`
`testimony that she has no reason to believe she did not receive the amounts stated
`
`on the printouts evidence of the printouts’ authenticity. See Ex. 1049 at 154:20–22
`
`(re Ex. 1041: “I’ve never seen this before and this is –this is ProPublica? I have
`
`not ever seen this before.”); id. at 155:4–7 (re same exhibit, accepting Petitioner’s
`
`counsel’s representation that “[t]his is the number that Allergan reported”).
`
`Attorney argument and citations to additional unauthenticated website cannot
`
`remedy Petitioner’s failure to provide the required affidavits.
`
`Additionally, Petitioner’s contention that challenged exhibits are
`
`“publication[s] purporting to be issued by a public authority,” and hence self-
`
`authenticating pursuant to Federal Rule of Evidence 902(5), is incorrect. This rule
`
`speaks to “book[s], pamphlet[s]” and similar types of publications – not interactive
`
`2
`
`
`
`IPR2018-00608
`Patent Owner’s Reply ISO Motion to Exclude
`
`website printouts. While “[o]fficial publications from government websites are
`
`generally considered to be self-authenticating,” the challenged website printouts
`
`are clearly not official government publications, but instead are snapshots of
`
`interactive websites. Xactware Solutions, Slip op. at 11. And Exhibits 1041, 1042,
`
`and 1048, which purport to be snapshots of a “Dollars for Docs” website, do not
`
`even purport to be from a government website.
`
`III. CONCLUSION
`For the reasons stated above and in its motion (Paper 36), Almirall requests
`
`that Exhibits 1041–1048 be excluded.
`
`
`
`Dated: May 15, 2019
`
`
`
`
`Respectfully submitted,
`
`FENWICK & WEST LLP
`
`By:/ James S. Trainor/
`James S. Trainor (Reg. No. 52,297)
`
`Attorneys for Patent Owner
`Almirall, LLC
`
`
`
`
`
`
`
`3
`
`
`
`IPR2018-00608
`Patent Owner’s Reply ISO Motion to Exclude
`
`
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. § 42.6, I hereby certify that on May 15, 2019, the
`
`foregoing PATENT OWNER’S REPLY IN SUPPORT OF ITS MOTION TO
`
`EXCLUDE EVIDENCE was served by electronic mail on the following counsel
`
`of record for petitioner:
`
`Dennies Varughese (dvarughe-PTAB@skgf.com)
`Adam C. LaRock (alarock-PTAB@skgf.com)
`PTAB@skgf.com
`Sterne, Kessler, Goldstein & Fox
`1100 New York Avenue, NW, Suite 600
`Washington, DC 20005
`
`Dated: May 15, 2019
`
`
`Respectfully submitted,
`
`FENWICK & WEST LLP
`
`
`By:/ James S. Trainor/
`James S. Trainor (Reg. No. 52,297)
`
`Attorneys for Patent Owner
`Almirall, LLC
`
`
`
`
`
`
`
`
`
`
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
