UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` -----------------------------------
` MYLAN PHARMACEUTICALS INC.,
` Petitioner,
` vs
` NOVO NORDISK A/S,
` Patent Owner,
` -----------------------------------
` Case IPR2023-00724
` U.S. Patent No. 10,335,462
` -----------------------------------
` Conference Call
` Monday, July 22, 2024
` 12:14 p.m. CST
`
`Job No.: 546358
`Pages: 1 - 65
`Reported by: THERESA A. VORKAPIC,
` CSR, RMR, CRR, RPR
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`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00001
`
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` -----------------------------------
` MYLAN PHARMACEUTICALS INC.,
` Petitioner,
` vs
` NOVO NORDISK A/S,
` Patent Owner,
` -----------------------------------
` Case IPR2023-00724
` U.S. Patent No. 10,335,462
` -----------------------------------
` Conference Call
` Monday, July 22, 2024
` 12:14 p.m. CST
`
`Job No.: 546358
`Pages: 1 - 65
`Reported by: THERESA A. VORKAPIC,
` CSR, RMR, CRR, RPR
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`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00001
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`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`2
`
` Conference call, pursuant to agreement before
`Theresa A. Vorkapic, a Certified Shorthand
`Reporter, Registered Merit Reporter, Certified
`Realtime Reporter, Registered Professional
`Reporter and a Notary Public in and for the State
`of Illinois.
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00002
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`3
`
` A P P E A R A N C E S
`ON BEHALF OF THE PETITIONER:
` DAVID L. ANSTAETT, ESQUIRE
` PERKINS COIE LLP
` 33 East Main Street, Suite 201
` Madison, Wisconsin 53703-3095
` 608-663-5408
` danstaett@perkinscoie.com
`ON BEHALF OF THE PATENT OWNER:
` J. STEVEN BAUGHMAN, ESQUIRE
` GROOMBRIDGE WU BAUGHMAN & STONE LLP
` 801 17th Street, NW, Suite 1050
` Washington, DC 20006
` 202-505-5832
` steve.baughman@groombridgewu.com
`APPEARED ON BEHALF OF SUN PHARMA:
` BRIAN SODIKOFF, ESQUIRE
` KATTEN MUCHIN ROSENMAN LLP
` 525 West Monroe Street
` Chicago, Illinois 60661-3693
` 312-902-5462
` brian.sodikoff@katten.com
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00003
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`4
`
` A P P E A R A N C E S (Continued)
`APPEARED ON BEHALF OF DR. REDDY'S
`LABORATORIES:
` SCOTT BORDER, ESQUIRE
` WINSTON & STRAWN, LLP
` 1901 L Street NW
` Washington, DC 20036
` 202-282-5054
` sborder@winston.com
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`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00004
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`5
`
` P R O C E E D I N G S
` (Proceedings were had which are not herein
` transcribed.)
` MR. BAUGHMAN: I'd like to go on to the
`relief we're seeking if that's agreeable.
` THE CHAIRPERSON: Yes, that would.
` MR. BAUGHMAN: So we're not seeking to
`have the board enforce Mylan's stipulation. It's
`not purpose of this call. And if Mylan continues,
`I expect we'll see litigation counsel do that at
`the District Court.
` What we're seeking permission for is a
`motion for sanctions for Mylan's ongoing
`violations, and those are sanctions the District
`Court can't give us. The standard for sanctions
`under PQA and OpenSky, I'm happy to give the cites
`for those, it's IPR2021-1229, Paper 102 that's
`precedential, at Pages 36 to 37 and OpenSky is
`IPR2021-1064 Paper 102 at 26. It's a three-part
`test. The first is whether the parties performed
`conduct warranting sanctions, and PQA says that
`the fact-based inquiry about whether conduct
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`888.433.3767 | WWW.PLANETDEPOS.COM
`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00005
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`6
`
`demonstrates an abuse of process or conduct that
`otherwise thwarts the supposed advances of --
`(inaudible).
` The second test is whether the conduct
`could cause harm, and that could be to another
`party, to the proceedings of the office, and the
`third is whether potential sanctions are
`proportionate to the harm.
` We're prepared to make an appropriate
`showing on all three of those factors. I can
`pause now, your Honor, or go forward with that.
` THE CHAIRPERSON: Let me ask you a quick
`questions on the factual background as far as how
`you see Mylan's participation.
` MR. BAUGHMAN: Yes, your Honor.
` THE CHAIRPERSON: Mylan is part of the
`expert reports, is that what you're seeing, is
`their experts that now are working for third party
`that may or may not do something for the
`stipulation, sorry, is that like -- how are you
`seeing your active participation?
` MR. BAUGHMAN: Sure. So there are three
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`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00006
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`7
`
`experts your Honor, Drs. Dalby, Bantle and Jusko
`that in March submitted reports that each of them
`says they've been retained by Mylan and then they
`list the other defendant groups as well, so there
`are five defendant groups, but each of them in the
`first paragraph of their report says been retained
`on Mylan and X-Y-Z and then collectively there's
`the defendants.
` So we know that Mylan had continued to
`engage these experts, but then shared them with
`the other defendants and then Mylan served the
`reports.
` THE CHAIRPERSON: Okay. Thank you.
` MR. HERMAN: And my understanding is that,
`again, I haven't seen them, that some number of
`experts last week did something similar with Mylan
`saying, well, it won't pursue the grounds that are
`overlapping by motion or trial, but obviously it's
`still going full bore on expert discovery and
`everything else. That's sort of the quarterback
`that we see of the other defendants.
` THE CHAIRPERSON: And how do you
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`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00007
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`
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`Transcript of Conference Call
`Conducted on July 22, 2024
`
`8
`
`understand, and I will certainly turn to Mylan to
`get their position, but as you understand Mylan's
`position is if the law changes, we want to make
`sure that we have a record that we can run with
`that will not pursue motions for the grounds at
`trial if there's not a change in the law.
` MR. BAUGHMAN: My understanding is -- I'm
`sorry, your Honor.
` THE CHAIRPERSON: No, no, go ahead.
` MR. BAUGHMAN: My understanding is they're
`saying, look, even though we promise not to pursue
`these things, we have to pursue them to preserve
`them and essentially, you know, I'm going to break
`my promise in case the law later changes and says
`I'm not bound by it.
` And I guess I would add if they really
`thought they were preserving something, they could
`have done that by writing us a letter or sending
`us a separate conditional opinion in case the law
`changes. They didn't need to share their experts
`with the other defendants, coordinate with them
`and then serve up the reports essentially coaching
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`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00008
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`9
`
`them to do what Mylan is not allowed to do.
` THE CHAIRPERSON: Okay.
` MR. BAUGHMAN: If you like, I can go
`through the three factors, your Honor, or I can
`pause in case you want to talk with the other
`parties.
` THE CHAIRPERSON: Yes, let me turn to
`Mylan and get their response to the factual
`scenario so we understand factually what's going
`on.
` MR. ANSTAETT: Thank you, your Honor.
` And I do want to take some time to respond
`and answer any questions that the board has
`because I think patent owner's question here is
`entirely unjustified and baseless on a variety of
`different grounds.
` I'll start by giving a high-level overview
`of the points I'd like to cover and if not
`necessarily in this particular order, but I'm, of
`course, happy to, you know, say as much or as
`little as the board wants, but first sanctions
`here would literally be unprecedented and the
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`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00009
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`10
`
`board has denied permission in the past to file
`such a motion.
` Second, the District Court is where issues
`like this should be raised as previous board
`decisions had pointed out.
` Third, the specific conduct that patent
`owner is complaining about is not inconsistent at
`all with our stipulations.
` And fourth, today's accusations are a
`virtual word-for-word retread of issues that
`patent owner already raised in which the board
`rejected when the board instituted and joined
`Sun's IPR for this one.
` I'll start with again to be clear what our
`Sand Revolution stipulation was. It was that
`petitioner will not pursue in the District Court
`any instituted grounds against the originally
`issued claims unless a change in law otherwise
`permits. And we have told patent owner's IPR
`counsel and its District Court counsel that unless
`the law changes, we will not pursue by motion or
`at trial in the District Court litigation any
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`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00010
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`11
`
`grounds of invalidity instituted in this IPR
`against the originally issued claims of the '462
`patent.
` Now, with respect to patent owner's
`complaint about the sharing of experts, we are
`aware of no authority that prohibit with respect
`to the Sand Revolution stipulation or otherwise
`the sharing of experts in District Court
`litigation. That is something that the District
`Court both expects and demands when there is a
`large joint defense group as is the case here
`because it is not going to hear from multiple
`experts on the same or related issues at trial.
`Nor are we aware of any prohibition on splitting
`expert bills amongst the joint defendants,
`especially when the experts are addressing both
`instituted and non-instituted invalidity grounds
`in their reports and nor to our knowledge is there
`any prohibition on participating in expert
`deposition preparation.
` I think it's important to realize here
`that because Mylan filed a Sand Revolution
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`888.433.3767 | WWW.PLANETDEPOS.COM
`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00011
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`12
`
`stipulation, it can assert Section 102 and 103
`grounds in the District Court that differ from
`differ from the instituted grounds, and those
`additional grounds as well as Section 112 grounds
`are contained in the expert report about that the
`patent owner complains and many of those ground
`involve the exact same prior art references that
`are in the instituted grounds.
` Now, add to the fact that the instituted
`grounds are also in those expert reports, patent
`owner has never explained despite our repeated
`request how it is prejudiced by the inclusion of
`grounds in District Court expert reports that are
`publicly available and can be pursued by the
`District Court defendants who aren't involved in
`these IPRs and aren't subject to any kind of
`estoppel. After all, the joint petitioners here
`simply copied the Mylan petition in the Mylan
`expert reports and there's no reason that parties
`in the District Court who are not involved in the
`IPR cannot do the same exact thing.
` Sand Revolution -- sure.
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`888.433.3767 | WWW.PLANETDEPOS.COM
`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00012
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`13
`
` THE CHAIRPERSON: So can you represent
`that Mylan is not involved in, you know, dealing
`with those grounds, strategizing over the grounds
`that are involved in the IPR or are you just --
`it's convenient, of course, to put it in one
`report that Mylan is not involved, can you
`represent that, that you're not involved in
`pursuing those grounds in those expert reports?
` MR. ANSTAETT: I'm reluctant to -- I'm
`reluctant to say anything on that score,
`your Honor, because as we've pointed out to patent
`owner with respect to their request for discovery
`in the communications with the experts, that would
`raise work product protection issues under Rule
`26(b)(4), and invite waiver of those protections,
`but I think the point is this with respect to
`that, our stipulation was specifically conditioned
`on the fact that there would not be a change in
`law with respect to this, and there are challenges
`to how -- whether the board has the authority to
`deny institution on those grounds and procedurally
`whether or not the rules were promulgated in the
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`888.433.3767 | WWW.PLANETDEPOS.COM
`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00013
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`14
`
`right way. And as we've pointed out, if we -- if
`there is a change in law and we can pursue those
`grounds, they have to be preserved in expert
`reports, but the fact that they are in expert
`report doesn't ask the District Court to do
`anything with that. The District Court doesn't --
`as opposed to the board, the District Court
`doesn't receive expert reports. It doesn't read
`expert reports because they're not evidence. The
`only way that the District Court is ever going to
`consider these grounds is if they are presented
`via a dispositive motion or at trial and, of
`course, at trial there are defendants in the joint
`defense group in the District Court who are not
`subject to any kind of estoppel and they are aware
`because they are all in the public domain, all
`these expert reports are in the public domain for
`anybody to use. And so we don't view what we are
`doing here is inconsistent in any way with our
`stipulation. We are preserving argument in case
`there is a change in the law, but we have
`committed to both patent owner's counsel here and
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`888.433.3767 | WWW.PLANETDEPOS.COM
`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00014
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`15
`
`the District Court counsel that we are not going
`to pursue those by a motion or at trial unless the
`law on this changes.
` I think that this is not the first time
`that that issue -- that this issue has been raised
`either in this IPR or in numerous other IPRs that
`we have cited the to patent owner's counsel in the
`meet and confer process here. And I think it's
`particularly important to note what has already
`happened in this IPR.
` So patent owner made all these same
`arguments that we've heard today with the
`institution and joinder of the Sun IPR. That's
`IPR 2024-00107. Patent owner argued there that
`Sundays Sand Revolution stipulation "should carry
`no weight because, e.g., Sidus and Rio who are
`additional District Court defendants who are not
`involved in the IPRs will still be able to assert
`those same grounds in the parallel litigation to
`which petitioner and Mylan remain parties. That
`was in IPR 2024-107 Paper 10.
` When Sun replaced its Sand Revolution
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`888.433.3767 | WWW.PLANETDEPOS.COM
`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00015
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`16
`
`stipulation with a broader Sotera stipulation,
`patent owner argued that that was also
`insufficient because Sun, "shares invalidity
`experts and presumably the experts' expenses in
`litigation with parties who have not agreed to any
`estoppel."
` Patent owner also argued that Sun's Sotera
`stipulation should be disregarded because Sun
`might "still pursue the stipulated grounds behind
`the scenes in the District Court by, e.g., paying
`for experts, participating in expert reports,
`deposition preparation, et cetera, in connection
`with any of the stipulated grounds."
` And then in instituting the Sun IPR on
`May 8 of 2024, the board noted all of these
`arguments that patent owner made and stated that
`the director's guidance "does not condition or
`otherwise qualify the effect of a Sotera
`stipulation on our exercise of discretion to deny
`the petition based on any remaining defendants in
`the parallel litigation that are not subject to
`the stipulation or any alleged behind-the-scenes
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`888.433.3767 | WWW.PLANETDEPOS.COM
`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00016
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`17
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`participation by petitioner such as paying for
`experts, participating in expert reports or
`deposition preparation in connection with any of
`the stipulated grounds." And the board said
`petitioner has filed such a stipulation and,
`therefore, we will not exercise our discretion to
`deny the petition in that IPR.
` And then about two weeks after the board
`issued that decision, patent owner sent us its
`sanctions motion. So essentially the board
`rejected patent owner's argument that I just
`described in instituting the Sun IPR and then
`patent owner turned around and recycled those
`exact same arguments in a sanctions motion against
`us, and we think that's improper.
` Now, I mentioned other cases in which the
`board has considered this issue and how sanctions
`here would be unprecedented. There is no case of
`which we are aware in which the board has ordered
`sanctions for the alleged violations of the Sand
`Revolution or Sotera stipulation. So the
`contrary, the board has repeatedly denied requests
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`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00017
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`18
`
`to file sanctions motions or motions for
`institution rehearing for the alleged violation of
`a Sotera or Sand Revolution stipulation and the
`board repeatedly has found that the scope and
`alleged violation of such stipulations are for the
`District Court to evaluate because that's where
`they are to be enforced, and I'm happen to cite
`the various case that our research located in
`which the board has taken that position.
` I would also note, your Honor, that this
`motion, this proposed motion, is incredibly
`untimely. The District Court expert reports about
`which patent owner complains were served on March
`19 of 2024 as my friend on the other side said.
`Invalidity contentions in the District Court were
`served even earlier, most recently in January of
`2024, but the first complaint we ever heard from
`patent owner about an alleged stipulation
`violation was when it served us this draft
`sanctions motion on June 10. The that was three
`months after the service of the District Court
`expert reports about which they are complaining
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`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00018
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`19
`
`and six months after the most recent invalidity
`contentions, and patent owner never once picked up
`the phone be it in January or in March to confer
`on this dispute. Instead, they waited for months
`to raise any objections, waited until after the
`board had refuse to deny institution of the Sun
`petition on the same bases and waited for a time
`when the culmination of these proceedings is
`looming and patent owner's District Court counsel
`by contrast had never raised any objections to our
`contentions or expert reports until July 9th, less
`than two weeks ago, mand it did so only after we
`pointed out to patent owner's IPR counsel that the
`District Court counsel had never objected or
`raised any issues, and so we think this is
`untimely. It threatens to delay these proceedings
`which are approaching the oral hearing,
`37 CFR ยง 42.25 provides that a party should
`release promptly after the need to relieve is
`identified and the delay in seeking relief may
`justify a denial of the relief sought, and we
`think patent owner is entitled to no relief
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00019
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`20
`
`whatsoever here, but they can't sit on these
`allegations for months without even reaching out
`to us raising the issue seeing the same kind of
`arguments rejected in the Sun petition and only
`now coming and seeking sanctions when it's about a
`month to the oral hearing.
` So I'll stop there and see if the board
`has any questions.
` THE CHAIRPERSON: I do have a question
`about our back and forth of you're asserting work
`product, which I get when you're talking about
`drafts going back and forth, that once that expert
`are report has been filed, I mean, can you not say
`whether you were involved at all in prepping that
`final report in terms of the ground that overlaps.
`It sounds like to me what I'm getting is Mylan's
`position is we'll make sure the record is there
`despite the stipulation, and we'll forward it on
`to a motion for summary judgment or pursue it at
`trial unless the law changes.
` MR. ANSTAED: I mean, I think that --
`again, I'm cautious, your Honor, about waiving
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00020
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`21
`
`privilege or work product protections not only on
`behalf of us but the joint defense are group in
`the District Court litigation, but I think the
`gist of what your Honor is saying is right. It is
`certainly our position that based on our
`stipulation which was expressly conditioned on
`keeping open the possibility that we could pursue
`these grounds if there is an a change incentive
`that they can be included in an expert report
`because you have to do that in the District Court
`to preserve the argument. If we don't do that,
`that reservation of rights is -- so I think we
`were purposely entitled to do that.
` What we're not doing is and what we've
`committed, you know, to not doing repeatedly is if
`there's not a change in the law, we are not going
`to ask the District Court to do anything about
`those grounds. We are not going to move for a
`judgment on those grounds. We are not going to
`prevent those grounds at trial.
` Patent owner's argument seems to be that
`like if there is any -- you know, if we were to
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00021
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`22
`
`talk to the experts, you know, in deposition
`preparation about these grounds or if we were to
`share, you know, expenses on experts in a way that
`didn't break out what grounds they were working on
`which is completely impractical when the prior art
`that is in the instituted grounds is in the
`un-instituted grounds as well, all of it is, that
`somehow that's a violation of our stipulation, and
`we absolutely reject that. And, again, are aware
`of no authority that would suggest that that is a
`violation and I think that's what the board said
`in the Sun institution decision and to the extent
`there is some kind of dispute over the scope of
`what can or cannot be done in the District Court,
`that's a matter for the District Court to decide
`where petitioner's -- patent owner's counsel has
`raised no objection, and as I've mentioned, any
`board decisions that we found say when there is a
`dispute about the scope of one of these
`stipulations, you raise it in the District Court
`where the stipulation is to be enforced.
` THE CHAIRPERSON: Let me ask you, your
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00022
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`23
`
`definition of pursue in the stipulation you mean
`as long as I'm not presuming it directly to the
`District Court judge to decide or the jury, I'm
`not pursuing, I'm just preserving a record that
`should the law change, I have access to to make
`the argument, but in your mind that's not pursuing
`to file expert declarations or be involved and
`I'll just assume for the sake of argument Mylan's
`involved in developing the grounds that are
`presented in our IPR here, your position is that's
`not pursuing and until we present it in a summary
`judgment motion or we're arguing it at trial,
`that's not pursuing until we get to that point?
`Is that a correct understanding?
` MR. ANSTAETT: I think that is a correct
`understanding, your Honor, of our position and
`that, again, based on the fact that we -- it's our
`view that we're perfectly entitled to preserve
`these issues and it's a Hatch-Waxman trial so it
`is a trial to the court, so there is not a jury
`here, but, yes, I think that's a fair statement.
` THE CHAIRPERSON: Okay. Mr. --
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00023
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`24
`
` MR. ANSTAETT: Your Honor, I'm sorry. If
`I may just make one final point with respect to
`that, patent owner in its sanctions motion and
`communications with us has noted that the expert
`report in the District Court on these instituted
`grounds are essentially verbatim, you know, they
`repeat verbatim what is in the IPR on those
`grounds and, of course, those are all publicly
`available, and there are parties in the District
`Court who are not estopped in any way. And,
`again, we're aware of nothing that says they can't
`take the arguments that are in the public domain
`and pursue those in the District Court. And so to
`the extent that the patent owner is complaining
`that we made have to face these, they are going to
`face them anyway because the District Court
`defendants aren't estopped and the allegation is,
`well, they are verbatim repeated what is in the
`publicly available IPR petition and declarations.
`We don't understand what the prejudice is.
` MR. BAUGHMAN: Your Honor, Steve Baughman.
`May I respond?
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00024
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`25
`
` THE CHAIRPERSON: Yes.
` MR. SODIKOFF: Sorry. Your Honor, this is
`Brian Sodikoff for Sun. I just want to put in
`marker at some point because patent owner is
`seeking sanctions that would go to the IPR
`generally not just Mylan, that Sun would have an
`opportunity to present some facts as well. So I
`just want to put like a marker down for that that
`in case that came up.
` THE CHAIRPERSON: Sure.
` MR. SODIKOFF: If you'd rather hear that
`now or after further arguments from Novo.
` THE CHAIRPERSON: Let me hear from patent
`owner, and I will circle back, but certainly
`anybody, Dr. Reddy's Labs, anybody who has a stake
`in this IPR I want to hear from your if you have
`something you want to say.
` So let me here from Mr. Baughman and I'll
`circle back for Sun.
` MR. BAUGHMAN: Thanks, your Honor. Steve
`Baughman.
` A lot to unpack here. And I guess the
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00025
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`26
`
`first thing I would say is I think even though
`it's come so far, I should make it sufficiently
`clear that there are very important fact issues
`here that need briefing, and I know the board's
`PQA authority has emphasized the fact down nature
`of sanctions motions and I think these are
`incredibly serious and important issues.
` I think your Honor never got an answer to
`the question which we've been posing for weeks
`which is, yes or no, can Mylan represent it has no
`substantive involvement in the preparation,
`discussion or the development of these theories
`and it continues last week.
` I think it is quite surprising to hear
`them make the two arguments now that essentially
`edit the clear words of their stipulation. The
`stipulation says they're not going to pursue it
`period, any pursuit, and now they're saying, well,
`we're not going to pursue it by motion or at
`trial, but we can do all we want to in the
`meantime. And I think you did get an answer to
`your question, your Honor, because they basically
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00026
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`27
`
`said we think we are perfectly entitled to do that
`to talk about the grounds of the experts,
`retaining the experts for the grounds, and if you
`look at the policies underlying stipulations
`including Sand Revolution, it's quite her that
`they are two fold; one is to avoid duplicative
`harassing litigation like the gang tackle that
`Mylan is organizing here against Novo, and the
`notion that Rio and Sidus can continue, that's
`perfectly true, but they can't continue with Mylan
`as their quarterback. Just because codefendants
`with whom they're sharing experts have the ability
`to make arguments doesn't mean that because they
`share experts, Mylan gets to join them and help
`them and to do that.
` The Sun institution decision to which my
`colleagues at the Bar referred on Page 10 as we
`understand it, this panel decided that the policy
`behind Sotera's stipulation is the directors'
`June 22 policy doesn't require more commitment in
`order to trigger the board not to institute --
`sorry, not to exercise its discretion, but it
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`Novo Nordisk Exhibit 2536
`Mylan Pharms. Inc. v. Novo Nordisk A/S
`IPR2023-00724
`Page 00027
`
`
`
`Transcript of Conference Call
`Conducted on July 22, 2024
`
`28
`
`certainly doesn't say that Mylan can organize and
`pay others to do what Mylan is not allowed to do.
`Sidus and Rio can continue litigating issues
`obviously, but they have to do it themselves, not
`with Mylan.
` In terms of sharing generally, again, the
`parties share experts. They also ask experts to
`itemize their bills and they excuse themselves
`when there are things like protective orders or
`other requirements that keep them from having
`certain conversations. It's not that complicated
`and it's certainly not an excuse to violate the
`stipulation that Mylan gave the board, the promise
`it made to the board in exchange for institution.
` The other had high level argument that I
`feel like we're hearing ove
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