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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`___________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
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`AMGEN INC.,
`Petitioner,
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`v.
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`ALEXION PHARMACEUTICALS, INC.,
`Patent Owner.
`___________________
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`Case IPR2019-00740
`U.S. Patent No. 9,718,880 B2
`___________________
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`AMGEN INC.'S
`OBJECTIONS TO EVIDENCE
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`Mail Stop "PATENT BOARD"
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`IPR2019-00740
`Patent 9,718,880 B2
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`Petitioner, Amgen Inc. (“Amgen”), objects under the Federal Rules of
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`Evidence (FRE) and 37 C.F.R. § 42.64(b)(1) to the admissibility of Exhibits 2094,
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`2095, and 2096, filed by Patent Owner Alexion Pharmaceuticals, Inc. (“Alexion”)
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`on April 27, 2020, with Alexion’s Patent Owner Surreply. Amgen’s Objections are
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`timely filed under 37 C.F.R. § 42.64(b)(1), within five business days of the April
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`27, 2020 Patent Owner Surreply. Amgen files these Objections to provide notice to
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`Alexion that Amgen may move to exclude Exhibits 2094, 2095, and 2096 under 37
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`C.F.R. § 42.64(c).
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`I.
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`IDENTIFICATION OF GROUNDS FOR OBJECTIONS
`Amgen objects to Alexion's inclusion of Exhibits 2094, 2095, and 2096 with
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`Alexion's Surreply. As noted in the Trial Practice Guide, "[t]he sur-reply may not
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`be accompanied by new evidence other than deposition transcripts of the cross-
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`examination of any reply witness." Patent Trial and Appeal Board Consolidated
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`Trial Practice Guide November 2019, p. 73. Alexion did not introduce any of
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`Exhibits 2094, 2095, and 2096 during the deposition of Dr. Balthasar (Exhibit
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`2093) or of Mr. Hoffman (Exhibit 2092), and neither party previously referenced
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`Exhibits 2094, 2095, or 2096. Accordingly, Exhibits 2094, 2095, and 2096 are
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`"new" evidence to the Surreply, and introduction of these exhibits at this stage of
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`the proceeding is a clear violation of the PTAB rules of practice.
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`- 1 -
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`IPR2019-00740
`Patent 9,718,880 B2
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`Amgen objects to Exhibits 2094, 2095, and 2096 under FRE 403 as being
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`unfairly prejudicial to Amgen. Alexion submitted Exhibits 2094, 2095, and 2096
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`together with its last substantive filing, in contravention of Board rules. Amgen has
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`had no opportunity to respond to these exhibits or the related new arguments in
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`Alexion's Surreply, and will not have the opportunity to do so given the late stage
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`of this proceeding. Accordingly, allowing these exhibits to remain in the record
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`would be prejudicial to Amgen.
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`Amgen also objects to Exhibit 2096 as lacking authentication under FRE
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`901. In particular, Amgen objects to Exhibit 2096 because Alexion has failed to
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`provide sufficient evidence that Exhibit 2096 is what Alexion claims it is.
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`II. CONCLUSION
`Should Alexion fail to withdraw or otherwise correct the defects associated
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`with Exhibits 2094, 2095, and 2096 in view of Amgen's objections, Amgen may
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`file a motion to exclude Exhibits 2094, 2095, and 2096 under 37 C.F.R. § 42.64(c).
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`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
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`Deborah A. Sterling, Ph.D.
`Date: May 4, 2020
`1100 New York Avenue, N.W. Registration No. 62,732
`Washington, D.C. 20005-3934
`Lead Attorney for Petitioner
`(202) 371-2600
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`CERTIFICATE OF SERVICE (37 C.F.R. § 42.6(e))
`The undersigned hereby certifies that the above-captioned "AMGEN INC.'S
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`OBJECTIONS TO EVIDENCE" was served in its entirety on May 4, 2020, upon
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`the following parties via email:
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`Gerald J. Flattmann, Jr.
`Vanessa Y. Yen
`Evan D. Diamond
`KING & SPALDING LLP
`1185 Avenue of the Americas
`New York, NY 10036
`(212) 556-2157
`gflattmann@kslaw.com
`vyen@kslaw.com
`ediamond@kslaw.com
`Alexion-PTAB@kslaw.com
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`
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`Lori A. Gordon
`KING & SPALDING LLP
`1700 Pennsylvania Ave NW
`Washington, D.C. 20006
`(202) 737-0500 (reception)
`lgordon@kslaw.com
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`
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`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
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`
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`Deborah A. Sterling, Ph.D.
`Date: May 4, 2020
`1100 New York Avenue, N.W. Registration No. 62,732
`Washington, D.C. 20005-3934
`Lead Attorney for Petitioner
`(202) 371-2600
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`14950481.2
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