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U.S. Patent No. 8,859,623
`Declaration of Assad Sawaya in Support of Petitioner’s Repiy
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`Altaire Pharmaceuticals, Inc.
`
`Petitioner
`
`V.
`
`Paragon Bz'oTeck, Inc.
`
`Patent Owner
`
`U.S. Patent No. 8,859,623
`Issue Date: October 14, 2014
`Entitled: METHODS AND COMPOSITIONS OF STABLE PHENYLEPHRINE
`FORMULATIONS
`
`
`
`Post-Grant Review No.: PGR2015-0001 1
`
`
`DECLARATI%N OF ASSAD SAWAYA IN
`
`DocumentNumber: 3327905
`
`Exhibit 1022, page 1 of 6
`
`Exhibit 1022, Page 1 of 6
`
`

`
`US. Patent No. 8,859,623
`Declaration of Assad Sawaya in Support of Petitioner’s Reply
`
`I, Assad Sawaya, declare as follows:
`
`1.
`
`I am President of Altaire Pharmaceutical, Inc. (“Altaire”). I am
`
`also General Manager of Sawaya Aquebogue, LLC (“Saw Aque”). I make this
`
`declaration based upon my personal knowledge of the facts stated herein.
`
`2.
`
`Altaire is a corporation with its principal place of business
`
`located at 311 West Lane, Aquebogue, NY 11931. Altaire is incorporated under
`
`the laws of New York.
`
`3.
`
`Altaire manufactures numerous pharmaceutical compositions
`
`and drugs. One such composition, phenylephrine hydrochloride ophthalmic
`
`solution, is the subject of U.S. Patent 8,859,623 (“the ’623 patent”). Altaire has
`
`been manufacturing, selling and distributing phenylephrine hydrochloride
`
`ophthalmic solution for several years prior to the filing of the ’623 patent.
`
`4.
`
`Saw Aque is a limited liability company organized under the
`
`laws of New York. Saw Aque is a holding company.‘
`
`5.
`
`Saw Aque does not manufacture or sell any products related to
`
`the ’623 patent. Nor is Saw Aque party to any agreement regarding the subject
`
`matter of the ’623 patent. In addition, Saw Aque maintains no affiliate
`
`relationships with any entity that manufactures or sells products covered by the
`
`’623 patent.
`
`Exhibit 1022, Page 2 of 6
`
`Exhibit 1022, Page 2 of 6
`
`

`
`U.S. Patent No. 8,859,623
`Declaration of Assad Sawaya in Support of Petitioner’s Reply
`
`6.
`
`Altaire and Saw Aque are separate and distinct entities having
`
`different ownership interests. Altaire and Saw Aque do not have a
`
`parent/subsidiary relationship Altaire has no ownership interest in Saw Aque, and
`
`Saw Aque has no ownership interest in Altaire, either directly or indirectly.
`
`Altaire and Saw Aque are not under common control or even run by the same
`
`person, with each having different ownership interests and different controlling
`
`interests.
`
`7.
`
`Altaire and Saw Aque maintain separate business records, pay
`
`separate taxes, and have completely different business objectives. While I have a
`
`leadership position in both entities, each entity has separate interests and goals,
`
`and I separately represent those interests and goals.
`
`8.
`
`Altaire and Saw Aque, furthermore, are in different fields of
`
`business. Altaire is in the business of pharmaceutical research, development,
`
`manufacturing, supply and distribution. In contrast, Saw Aque is a holding
`
`company that holds real property‘ Saw Aque does not
`
`make, sell, manufacture, supply, or distribute any pharmaceutical products.
`
`9.
`
`Saw Aque does not have an interest in reviewing the ’623
`
`patent. Saw Aque does not have an ownership interest in any entity that could
`
`infringe the ’623 patent. Saw Aque does not have the capabilities to manufacture
`
`or sell products that allegedly could be covered by the ’623 patent.
`
`Exhibit 1022, Page 3 of 6
`
`Exhibit 1022, Page 3 of 6
`
`

`
`U.S. Patent No. 8,859,623
`Declaration of Assad Sawaya in Support of Petitioner’s Reply
`
`10.
`
`The sales by Altaire to Paragon are irrelevant to Saw Aque’s
`
`business. Saw Aque does not receive consideration from Altaire as a result of its
`
`sales to Paragon of products. Saw Aque does not benefit from increased sales by
`
`Altaire. Saw Aque would obtain no financial benefit from the cancellation of the
`
`’623 patent.
`
`ll.
`
`Saw Aque’s interests are not unified with Altaire’s in this PGR
`
`proceeding.
`
`l2. Altaire alone is in control of this post grant review proceeding.
`
`Altaire alone funded and sought review of the ’623 patent. Altaire alone intends
`
`to solely control the review proceeding without input from Saw Aque. Saw Aque
`
`did not direct, control, or fund the preparation or filing of the Petition.
`
`13. Altaire and Saw Aque have a tenant — landlord relationship.
`
`Saw Aque leases certain property to Altaire. The lease agreement was negotiated
`
`and reflects arm length rates.
`
`14. As I understand, Paragon filed a lawsuit alleging that Altaire
`
`and Saw Aque breached a contract agreement (“Agreement”) with Paragon. My
`
`understanding of the lawsuit is that the only allegations relate to misuse of
`
`Exhibit 1022, Page 4 of 6
`
`Exhibit 1022, Page 4 of 6
`
`

`
`U.S. Patent No. 8,859,623
`Declaration of Assad Sawaya in Support of Petitioner’s Reply
`
`confidential information and breach of contract. There are no patent related
`
`claims.
`
`15.
`
`The lawsuit’s underlying Agreement is solely by and between
`
`Altaire and Paragon. Saw Aque is not a party to the Agreement. For example,
`
`Saw Aque has no obligations to either Altaire or Paragon under the Agreement,
`
`and was not a party to signing the Agreement.
`
`Exhibit 1022, Page 5 of 6
`
`Exhibit 1022, Page 5 of 6
`
`

`
`U.S. Patent No. 8,859,623
`Declaration of Assad Sawaya in Support of Petitioner’s Reply
`
`A
`
`I declare under penalty of perjury under the laws of the United States
`
`of America that the foregoing is true and correct. Executed this 28th of
`
`September, 2015, at 31 1 West Lane, Aquebogue, NY, 1 1931.
`
`
`
`Exhibit 1022, Page 6 of 6
`
`Exhibit 1022, Page 6 of 6

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