`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`___________________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
`
`MODERNA THERAPEUTICS, INC.
`Petitioner
`
`
`v.
`
`
`PROTIVA BIOTHERAPEUTICS, INC.,
`Patent Owner
`___________________
`
`Case IPR2018-00739
`Patent 9,364,435 B2
`___________________
`
`
`PETITIONER'S NOTICE OF APPEAL
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`
`
`
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`10762419
`
`
`
`
`
`
`
`
`
`Case IPR2018-00739
`Patent 9,364,435 B2
`
`Notice is hereby given, pursuant to 37 C.F.R. § 90.2(a), that Petitioner
`
`Moderna Therapeutics, Inc. ("Petitioner") hereby appeals to the United States
`
`Court of Appeals for the Federal Circuit from the Patent Trial and Appeal
`
`Board's Final Written Decision (Paper No. 51) in Case No. IPR2018-00739
`
`entered September 11, 2019 and from all underlying orders, decisions, rulings,
`
`and opinions which adversely affected Petitioner.
`
`In accordance with 37 C.F.R. § 90.2(a)(3)(ii), Petitioner further indicates
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`that the issues on appeal include, but are not limited to, the Board's
`
`determination of unpatentability of claims 7, 8, 10, 11, 13 and 16-20 of U.S.
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`Patent No. 9,364,435 (the "'435 patent") under 35 U.S.C. §§ 102 & 103; the
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`Board's application of its interpretation of the claims of the '435 patent to the
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`facts of record; the Board's consideration of record evidence, including but not
`
`limited to confidential drawings, fact witness declarations about alleged prior
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`sale and use, and expert testimony; and all findings or determinations
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`supporting or relating to those issues, as well as any other issues decided
`
`adversely to Petitioner in any orders, decisions, rulings, and opinions. The
`
`issues on appeal further include the unconstitutionality of the panel entering the
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`final written decision under the Appointments Clause of the Constitution. See
`
`Arthrex, Inc. v. Smith & Nephew, Inc., No. 2018-2140 (Fed. Cir. Oct. 31,
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`10762419
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`- 1 -
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`Case IPR2018-00739
`Patent 9,364,435 B2
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`2019); see also UNILOC 2017 LLC v. Facebook, Inc., No. 2018-2251 (Fed.
`
`Cir. Oct. 31, 2019) (nonprecedential order).
`
`Pursuant to 37 C.F.R. § 90.2(a)(1) and (a)(2), and as reflected in the
`
`attached Certificate of Service, this Notice of Appeal is being electronically
`
`filed with the Board through PRPS and the United States Court of Appeals for
`
`the Federal Circuit
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`through CM/ECF along with the requisite filing fee. A copy is also being
`
`served on the Office of the General Counsel at the U.S. Patent and Trademark
`
`Office.
`
`
`
`
`
`Dated: November 13, 2019
`
`
`Respectfully submitted,
`
`/s/ Michael R. Fleming
`Michael R. Fleming (Reg. No. 67,933)
`C. Maclain Wells (Reg. No. 48,991)
`IRELL & MANELLA LLP
`Telephone: (310) 277-1010
`Attorneys for Petitioner
`
`
`
`10762419
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`- 2 -
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`Case IPR2018-00739
`Patent 9,364,435 B2
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`
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`CERTIFICATE OF FILING AND SERVICE
`
`
`The undersigned certifies in accordance with 37 C.F.R. § 42.6(e) that on
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`November 13, 2019, a copy of the foregoing PETITIONER'S NOTICE OF
`
`APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE
`
`FEDERAL CIRCUIT was served via email upon the following by email:
`
`WILSON SONSINI GOODRICH & ROSATI
`Michael T. Rosato, Reg. No. 52,182
`mrosato@wsgr.com
`
`Steven W. Parmelee, Reg. No. 31,990
`sparmelee@wsgr.com
`
`Sonja R. Gerrard, Reg. No. 72,802
`sgerrard@wsgr.com
`
`Edward R. Reines
`Edward.reines@weil.com
`
`Derek C. Walter
`Derek.Walter@weil.com
`
`
`
`I also certify that in addition to being filed electronically with the Board
`
`through PRPS, the original of the foregoing Notice of Appeal is being served,
`
`pursuant to 37 C.F.R. § 104.2, by hand on November 13, 2019 to the United
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`States Patent and Trademark Office at the following address: Office of the
`
`General Counsel, 10B20, Madison Building East, 600 Dulany Street,
`
`Alexandria, Virginia.
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`10762419
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`Case IPR2018-00739
`Patent 9,364,435 B2
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`I further certify that a copy of the foregoing Notice of Appeal is being
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`filed via CM/ECF on November 13, 2019 with the United States Court of
`
`Appeals for the Federal Circuit.
`
`
`Dated: November 13, 2019
`
`
`
`By:
`
`
`
`
`
`/Susan M. Langworthy/
` Susan M. Langworthy
`
`10762419
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