From:
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`Date:
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`Maebius, Steve
`Precedential_Opinion_Panel_Request
`zLiquidiavUTC308970201@cooley.com; ielrifi@cooley.com; UTC - 901
`IPR2020-00770 Request for Precedential Opinion Panel Accompanying Panel Rehearing Request of FWD
`Monday, November 8, 2021 11:48:39 AM
`
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`Patent Owner has concurrently filed a Request for Panel Rehearing of the FWD in the
`above-captioned IPR and hereby requests Precedential Opinion Panel Review. The
`detailed reasons for requesting Precedential Opinion Panel review are as follows.
`The FWD relies extensively upon the unsworn Winkler Declaration (EX1002) in
`concluding that Petitioner established obviousness of claims 1-5, 8, and 9 based on
`the combination of Moriarty and Phares. FWD at pp. 32-34, 36-38, 41, and 42. As
`noted in the Patent Owner Response (Paper No. 12) at pp. 1 and 60 and Motion to
`Exclude (Paper No. 31), Dr. Winkler’s unsworn statements were not admissible as
`submitted. Patent Owner also timely objected to the Winkler Declaration for lacking
`authentication following institution (Paper No. 10), and Petitioner did not timely submit
`supplemental evidence in the form of a sworn Winkler Declaration or timely seek
`waiver or other accommodation that would have afforded Patent Owner an adequate
`opportunity to respond. See Paper 44, 22:8-24:17 (critiquing Liquidia’s improper self-
`help remedy). For these reasons, the FWD conflicts with the precedent and statutes
`noted below.
`
`Based on my professional judgment, I believe the Board panel decision is contrary to
`the following decision(s) of the Supreme Court of the United States, the United States
`Court of Appeals for the Federal Circuit, or the precedent(s) of the Board: In re
`Mehta, 347 F.2d 859, 866 (C.C.P.A. 1965); FedEx Corp. v. Ronald A Katz Tech.
`Lisc., CBM2015-00053, Paper 9, pp. 7–8 (P.T.A.B. June 29, 2015).
`
`Based on my professional judgment, I believe the Board panel decision is contrary to
`the following constitutional provision, statute, or regulation: 28 U.S.C. § 1746; 35
`U.S.C. §§ 23, 25.
`
`Based on my professional judgment, I believe this case requires an answer to one or
`more precedent-setting questions of exceptional importance: Whether the Board may
`rely in a final written decision on evidence that the Board itself acknowledges is not
`admissible, despite the opposing party’s timely objection and the proponent’s failure
`to comply with the Board’s procedures for curing an evidentiary deficiency.
`
`Respectfully submitted,
`
`Stephen B. Maebius
`Reg. No. 35,264
`Counsel for Patent Owner
`
`IPR2020-00770
`Ex. 3002
`
`

`

`
`Stephen B. Maebius
`Foley & Lardner LLP
`3000 K St., NW
`Washington, DC 20007
`Office 202.672.5569
`Cell 202.352.0676
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