`
`_____________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_____________________________
`
`AQUESTIVE THERAPEUTICS, INC.,
`
`Petitioner,
`
`v.
`
`NEURELIS, INC.,
`
`Patent Owner.
`
`_____________________________
`
`Case IPR2019-00451
`
`U.S. Patent No. 9,763,876
`
`_____________________________
`
`PATENT OWNER NEURELIS, INC.’S NOTICE OF APPEAL
`
`
`
`Pursuant to 35 U.S.C. §§141(c), 142, and 319, and 37 C.F.R. §90.2(a),
`
`Neurelis, Inc. (“Patent Owner”) respectfully gives notice that it appeals to the
`
`United States Court of Appeals for the Federal Circuit from the Patent Trial and
`
`Appeal Board’s (the “Board”) Final Written Decision entered on August 6, 2020
`
`(Paper 44), and from all other underlying orders, decisions, rulings, and opinions.
`
`This Notice of Appeal is timely filed under 35 U.S.C. §142, Fed. Cir. R. 15(a)(1),
`
`and 37 C.F.R. §90.3.
`
`For the limited purpose of providing the Director of the United States Patent
`
`and Trademark Office with the information specified in 37 C.F.R. §90.2(a)(3)(ii),
`
`the issues on appeal include the Board’s determination that claims 1-36 of U.S.
`
`Patent No. 9,763,876 (“’876 Patent”) were shown to be unpatentable under
`
`35 U.S.C. §103 in view of the grounds of unpatentability identified in the Board’s
`
`Final Written Decision. The issues on appeal also include any Board finding or
`
`conclusion supporting or related to this determination, as well as all other decisions
`
`adverse to Patent Owner in any Board order, decision, ruling, or opinion. These
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`issues include, but are not limited to, the following: (1) whether the Board erred in
`
`applying the wrong standards and burdens to conclude that the claims of the ’876
`
`Patent were not entitled to benefit of the priority filing date of U.S. Provisional
`
`Patent Application No. 61/040,558 (“’558 Provisional”), leading the Board to
`
`apply non-prior art references to the claims, and leading the Board to conclude the
`
`IPR2019-00451
`
`-1-
`
`U.S. Patent No. 9,763,876
`
`
`
`claims were obvious over these references; (2) whether the Board erred in holding
`
`the ’879 Patent claims were obvious over U.S. Patent Application Publication
`
`No. 2008/0279784 to Cartt, U.S. Publication No. 2006/0046962 to Meezan, and
`
`PCT Publication No. WO 2009/1209033 to Gwozdz; (3) whether the Board
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`misconstrued dependent claims of the ’876 Patent to require a generic “alkyl
`
`glycoside”, thereby overlooking uncontested express support in the ’558
`
`Provisional for those claims; and (4) whether the Board violated administrative-
`
`law requirements by introducing its own new and erroneous legal theories without
`
`providing Patent Owner adequate opportunity to respond.
`
`This Notice of Appeal is being filed at the Board electronically via the
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`PTAB E2E system, and with the Director at the address provided in 37 C.F.R.
`
`§104.2, in accordance with 37 C.F.R. §90.2(a)(1); and is being served on the
`
`Petitioner in accordance with 37 C.F.R. §42.6(e). This Notice of Appeal, along
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`with the required fee in accordance with Fed. Cir. R. 15(a)(4) and 52, is also being
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`filed with the Clerk’s Office for the United States Court of Appeals for the Federal
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`Circuit in accordance with Fed. Cir. R. 15(a)(1).
`
`Dated: October , 2020
`
`Respectfully submitted,
`
`Jeffrey W. Guise, Lead Counsel
`Reg. No. 34,613
`
`IPR2019-00451
`
`-2-
`
`U.S. Patent No. 9,763,876
`
`
`
`CERTIFICATE OF SERVICE
`
`I certify that this paper was served on counsel for the petitioner at the
`
`following email addresses:
`
`Daniel A. Scola, Jr.
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`dscola@hbiplaw.com
`
`Michael I. Chakansky
`
`
`
`mchakansky@hbiplaw.com
`
`James F. Harrington
`
`jharrington@hbiplaw.com
`
`Matthew J. Solow
`
`msolow@hbiplaw.com
`
`John T. Gallagher
`
`jgallagher@hbiplaw.com
`
`HOFFMANN & BARON, LLP
`
`876IPR@hbiplaw.com
`
`Dated: October 8, 2020
`
`Respectfully submitted,
`
`/Robyn Moriarty/
`Robyn Moriarty
`
`
`
`IPR2019-00451
`
`-3-
`
`U.S. Patent No. 9,763,876
`
`
`
`CERTIFICATE OF FILING
`
`Pursuant to 37 C.F.R. §90.2(a), 35 U.S.C. §142, and 37 C.F.R. §104.2, this
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`is to certify that on this 8th day of October, 2020, I caused to be filed the foregoing
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`PATENT OWNER NEURELIS, INC.’s NOTICE OF APPEAL with the
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`following:
`
` the Director of the United States Patent and Trademark Office by hand-
`
`delivery to
`
`Director of the United States Patent and Trademark Office
`c/o Office of the General Counsel
`United States Patent and Trademark Office
`10B20, Madison Building East
`600 Dulany Street
`Alexandria, VA 22314
`
` the Patent Trial and Appeal Board through the Board’s PTAB E2E System
`
` the Clerk of the United States Court of Appeals for the Federal Circuit
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`through the CM/ECF filing system together with the requisite filing fee
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`submitted via pay.gov
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`Dated: October 8, 2020
`
`Respectfully submitted,
`
`/Robyn Moriarty/
`Robyn Moriarty
`
`
`
`IPR2019-00451
`
`-4-
`
`U.S. Patent No. 9,763,876
`
`
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