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