IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`ELI LILLY AND COMPANY,
`
`Petitioner,
`
`V.
`
`TEVA PHARMACEUTICALS INTERNATIONAL GMBH,
`Patent Owner.
`
`CASE IPR2018-01426
`
`Patent 9,890,211
`
`PATENT OWNER’S NOTICE OF APPEAL
`
`Via PTAB E2E
`
`Patent Trial and Appeal Board
`
`Via Certified US. Mail
`
`Director of the United States Patent and Trademark Office
`
`Office of the General Counsel
`
`United States Patent and Trademark Office
`
`PO. Box 1450
`
`Alexandria, Virginia 22313-1450
`
`Via CM/ECF
`
`United States Court of Appeals for the Federal Circuit
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`ELI LILLY AND COMPANY,
`
`Petitioner,
`
`V.
`
`TEVA PHARMACEUTICALS INTERNATIONAL GMBH,
`Patent Owner.
`
`CASE IPR2018-01426
`
`Patent 9,890,211
`
`PATENT OWNER’S NOTICE OF APPEAL
`
`Via PTAB E2E
`
`Patent Trial and Appeal Board
`
`Via Certified US. Mail
`
`Director of the United States Patent and Trademark Office
`
`Office of the General Counsel
`
`United States Patent and Trademark Office
`
`PO. Box 1450
`
`Alexandria, Virginia 22313-1450
`
`Via CM/ECF
`
`United States Court of Appeals for the Federal Circuit
`
`
`
`Case IPR2018-01426
`
`Patent No. 9,890,211
`
`INTRODUCTION
`
`Teva Pharmaceuticals International GmbH’ s appeal stems from the Patent
`
`Trial and Appeal Board’ s Final Written Decision entered on February 18, 2020
`
`(Paper 78) (the “Final Written Decision”) in the above-captioned inter partes
`
`review of United States Patent No. 9,890,211. This notice is timely filed within 63
`
`days of the Final Written Decision. 37 C.F.R. § 90.3(b)(1).
`
`TEVA PHARMACEUTICALS INTERNATIONAL GMBH’S APPEAL
`
`Please take notice that under 35 U.S.C. §§ 141(c), 142, 319; 37 C.F.R.
`
`§§ 90.2(a), 90.3(a); and Federal Circuit Rule 15, Patent Owner Teva
`
`Pharmaceuticals International GmbH hereby appeals to the United States Court of
`
`Appeals for the Federal Circuit from the Final Written Decision based on the
`
`“Decision, Institution of Inter Partes Review” entered on February 25, 2019 (Paper
`
`14) (the “Institution Decision”).
`
`TEVA PHARMACEUTICALS INTERNATIONAL GMBH’S
`
`ISSUES ON APPEAL
`
`In accordance with 37 C.F.R. § 90.2(a)(3)(ii), Teva’s issues on appeal
`
`include at least: (i) whether the Board erred in construing the challenged claims;
`
`(ii) whether the Board erred in failing to conduct a lead-compound analysis;
`
`(iii) whether the Board erred in failing to separately analyze the obviousness of
`
`each claim; (iv) whether the Board erred in holding that a skilled artisan would
`
`have been motivated to combine the asserted references with a reasonable
`
`-1-
`
`
`
`Case IPR2018-01426
`
`Patent No. 9,890,211
`
`expectation of success; (v) whether the Board erred in its analysis of Teva’s
`
`proffered evidence of objective indicia of non-obviousness, including but not
`
`limited to its holdings that Teva was not entitled to a presumption of nexus and did
`
`not show an actual nexus; (vi) whether the Board erred in denying Teva’ s motions
`
`to strike and exclude evidence; (vii) whether the Board erred in its ultimate
`
`conclusion that the claims were unpatentable; (viii) whether the Board’ s decision
`
`was arbitrary and capricious, including because it held the parties to different
`
`standards with respect to argument preservation and waiver and because it
`
`permitted Petitioner to introduce new theories and new evidence in reply and in
`
`supplemental briefing; (ix) whether the Administrative Patent Judges of the panel
`
`were unconstitutionally appointed under the Appointments Clause; (x) whether the
`
`Board erred in refusing to allow Teva to move to stay the proceeding until it could
`
`be heard by a panel of Administrative Patent Judges constitutionally appointed
`
`under the Appointments Clause; and (xi) any finding or determination supporting
`
`or related to these issues and all other issues decided adversely to Patent Owner in
`
`any order, decision, ruling, phone conference decision, and/or opinion.
`
`Simultaneously with this submission, Teva is filing (i) a true and correct
`
`copy of this Notice of Appeal with the Director of the United States Patent and
`
`Trademark Office and (ii) a true and correct copy of the same, along with the
`
`
`
`Case lPR2018-01426
`
`Patent No. 9,890,211
`
`required docketing fee, With the Clerk of the United States Court of Appeals for the
`
`Federal Circuit as set forth in the accompanying Certificate of Filing.
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`o.W
`
`Date: April 21, 2020
`1100 New York Avenue, NW.
`Washington, DC. 20005-3934
`(202) 371-2600
`
`Deborah A. Sterling, PhD.
`Registration No. 62,732
`Lead Counsel for Patent Owner
`
`
`
`Case IPR2018-01426
`
`Patent No. 9,890,211
`
`CERTIFICATE OF FILING
`
`The undersigned hereby certifies that, in addition to being electronically
`
`filed through PTAB E2E, a true and correct copy of the above-captioned PATENT
`
`OWNER TEVA PHARMACEUTICALS INTERNATIONAL GMBH’S
`
`NOTICE OF APPEAL is being filed by certified US. mail with the Director on
`
`April 21, 2020, at the following address:
`
`Director of the United States Patent and Trademark Office
`
`Office of the General Counsel
`
`United States Patent and Trademark Office
`
`PO. Box 1450
`
`Alexandria, Virginia 22313-1450
`
`The undersigned also hereby certifies that a true and correct copy of the
`
`above captioned PATENT OWNER TEVA PHARMACEUTICALS
`
`INTERNATIONAL GMBH’S NOTICE OF APPEAL and the filing fee is being
`
`filed Via CM/ECF with the Clerk’s Office of the United States Court of Appeals
`
`for the Federal Circuit on April 21, 2020.
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & Fox P.L.L.C.
`
`CD. Wfi‘
`
`Date: April 21, 2020
`1100 New York Avenue, NW.
`Washington, DC. 20005-3934
`(202) 371-2600
`
`Deborah A. Sterling, Ph.D.
`Registration No. 62,732
`Lead Counsel for Patent Owner
`
`
`
`Case IPR2018-01426
`
`Patent No. 9,890,211
`
`CERTIFICATE OF SERVICE (37 C.F.R. §§ 42.6(e))
`
`The undersigned hereby certifies that the above-captioned “Patent Owner’s
`
`Notice of Appeal” was served in its entirety on April 21, 2020, via email on the
`
`Sanjay M. Jivraj
`Mark J. Stewart
`
`Eli Lilly and Company
`Lilly Corporate Center Patent Dept.
`Indianapolis, IN 46285
`jivraj_sanj ay@lilly.com
`stewart_mark@lilly.com
`
`following:
`
`William B. Raich
`Erin M. Sommers
`
`Pier D. DeRoo
`Yieyie Yang
`John Williamson
`Finnegan, Henderson, Farabow,
`Garrett & Dunner, LLP
`901 New York Avenue, NW
`
`Washington, DC 20001
`william.raich @ finnegan.com
`erin. sommers @ finnegan.com
`pier.deroo @ finnegan.eom
`yieyie.yang @ finnegan.com
`john.williamson @ finnegan.com
`
`STERNE, KESSLER, GOLDSTEIN & Fox P.L.L.C.
`
`Date: April 21, 2020
`1100 New York Avenue, NW.
`Washington, DC. 20005-3934
`(202) 371-2600
`
`CD. Wfi‘
`
`Deborah A. Sterling, Ph.D.
`Registration No. 62,732
`Lead Counsel for Patent Owner
`
`
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