`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________
`
`PROLLENIUM US INC.,
`Petitioner,
`
`v.
`
`ALLERGAN INDUSTRIE, SAS,
`Patent Owner.
`
`_________________
`
`IPR2019-01505 (Patent 8,450,475 B2)
`IPR2019-01506 (Patent 8,357,795 B2)
`IPR2019-01508 (Patent 9,238,013 B2)
`IPR2019-01509 (Patent 9,358,322 B2)
`IPR2019-01617 (Patent 8,822,676 B2)
`IPR2019-01632 (Patent 8,357,795 B2)
`IPR2020-00084 (Patent 9,089,519 B2)
`
`_________________
`
`PETITIONER’S OBJECTIONS
`UNDER 37 C.F.R. § 42.64(B)(1) TO PATENT OWNER’S EVIDENCE1
`
`
`1 Authorization for the use of a joint caption page was received on April 27, 2020.
`Neither party opposes the use of a joint caption page. An identical paper has been
`filed in each case recited in the consolidated caption.
`
`
`
`IPR2019-01505, IPR2019-01506, IPR2019-01508, IPR2019-01509,
`IPR2019-01617, IPR2019-01632, IPR2020-00084
`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioner Prollenium US Inc.,
`
`(“Petitioner”) submits these objections to Patent Owner’s evidence served with its
`
`Patent Owner Response on September 1, 2020, in each of the above-captioned IPR
`
`proceedings:
`
`Exhibits 2083 and 2084 should be excluded under Fed. R. Evid. 802 and
`
`402. These exhibits purport to be “Testing Report[s]” that were (1) produced by
`
`individuals who are not testifying in these proceedings, (2) on behalf of an entity
`
`that is not a party to the proceeding, (3) about patents not at issue in this
`
`proceeding, and (4) produced years after the priority date of the claims. Both the
`
`Patent Owner and its declarant Dr. Berkland rely on statements about testing
`
`supposedly performed by the individuals identified within the documents, as well
`
`as those individuals’ conclusions about the testing, contained within the
`
`documents, for their truth. See, e.g., IPR2019-01505, PO Response, 34-35;
`
`EX2013 ¶ 182. Thus the statements are double hearsay and should be excluded.
`
`Additionally, Exhibits 2083 and 2084 are not relevant to issues in this proceeding
`
`because they are purported testing results by a non-party for patents, claims, and
`
`compositions not at issue here and are, on their face, dated between 20 and 69
`
`months after the asserted priority date of the patents.
`
`Exhibits 2055, 2059, 2060, 2061, 2128, and 2148 should be excluded under
`
`Fed. R. Evid. 402 because they are documents published many years after the
`
`1
`
`
`
`IPR2019-01505, IPR2019-01506, IPR2019-01508, IPR2019-01509,
`IPR2019-01617, IPR2019-01632, IPR2020-00084
`August 2008 claimed priority date (published in the years 2015, 2016, 2018, 2011,
`
`2016, and 2019 respectively). Thus, they do not reflect the knowledge and level of
`
`skill of a person of ordinary skill in the art at or around the time of the alleged
`
`invention, so they are irrelevant.
`
`Respectfully submitted,
`/Warren Thomas/
`
`Warren J. Thomas (Reg. No. 70,581)
`
`2
`
`
`
`IPR2019-01505, IPR2019-01506, IPR2019-01508, IPR2019-01509,
`IPR2019-01617, IPR2019-01632, IPR2020-00084
`CERTIFICATE OF SERVICE
`
`
`
`Pursuant to 37 C.F.R. §§ 42.6(e)(4) and consent of the Patent Owner, I certify
`that on September 9, 2020, a copy of Petitioner’s Objections Under 37 C.F.R.
`§ 42.64(b)(1) to Patent Owner’s Evidence was served on the counsel of record by
`email to:
`aminsogna@jonesday.com
`tweisser@jonesday.com
`cplatt@jonesday.com
`sgeers@jonesday.com
`jhartjes@jonesday.com
`ProlleniumIPRs@jonesday.com
`
`
`
`
`/Warren Thomas/
`Warren J. Thomas (Reg. No. 70,581)
`
`3
`
`
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