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Musculoskeletal Transplant Foundation v. MiMedx Group, Inc.

Docket IPR2015-00669, Patent Trial and Appeal Board (Feb. 2, 2015)
Christopher Paulraj, Lora Green, Susan Mitchell, presiding
Case TypeInter Partes Review
Patent
8323701
Patent Owner MiMedx Group, Inc.
Petitioner Musculoskeletal Transplant Foundation
Petitioner Medline Industries
...
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20 Notice: Notice of Refund

Document IPR2015-00669, No. 20 Notice - Notice of Refund (P.T.A.B. Jan. 20, 2016)
Petitioner’s request for a refund of certain post-institution fees paid on 02/02/2015 in the above proceeding is hereby granted.
The amount of $14,000 has been refunded to the Petitioner’s deposit account.
Case IPR2015-00669 Patent 8,323,701 The parties are reminded that unless otherwise permitted by 37 C.F.R. § 42.6(b)(2), all filings in this proceeding must be made electronically in the Patent Review Processing System (PRPS), accessible from the Board Web site at http://www.uspto.gov/PTAB.
For the PATENT OWNER:
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18 Notice: Decision Denying Petitioners Request for Rehearing

Document IPR2015-00669, No. 18 Notice - Decision Denying Petitioners Request for Rehearing (P.T.A.B. Dec. 22, 2015)
Musculoskeletal Transplant Foundation filed a corrected Petition requesting an inter partes review of claims 1, 2, and 5–8 of U.S. Patent No. 8,323,701 B2 (Ex. 1001, “the ’701 patent”).
As we noted in the Institution Decision: We agree with Patent Owner that Petitioner has not demonstrated a reasonable likelihood that the combination of Wei, Tseng, Sulner, or Shenaq renders the challenged claims obvious.
Thus, we agree with Patent Owner that the ordinary artisan would [not, sic] read the disclosure of Wei as retaining the fibroblast cellular layer.
Petitioner also does not point to any evidence that we overlooked that supports its contention that the ordinary artisan would understand that leaving the fibroblast cells on the amnion would also lead to reduced immunogenicity.
Thus, Petitioner argues, “the spongy layer portions staying attached to the chorion are removed from the now separated amnion, thereby exposing, at least partially, the underlying fibroblast layer.” Id. at 13.
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14 Notice: Conduct of the Proceeding 37 CFR 425

Document IPR2015-00669, No. 14 Notice - Conduct of the Proceeding 37 CFR 425 (P.T.A.B. Aug. 18, 2015)
A conference call was held was held on Wednesday, August 5, 2015, between John Kim, Ralph Selitto, and Eric Bleich, counsel for Petitioner; Keith Broyles, Pamela Councill, and Jason Cooper, counsel for Patent Owner; and Administrative Patent Judges Green, Mitchell, and Paulraj.
In fact, Petitioner argues, in the Notice of Filing Date Accorded, the Board listed Snoasis as the Patent Owner in the caption.
When we asked what the remedy should be, Petitioner suggested that MiMedx should not be allowed to appear for Patent Owner or file a Preliminary Response.
At this point, Snoasis has not made any appearance in the case, and is thus a third party to the proceeding over which we have no jurisdiction to join it as a real party-in-interest as a Patent Owner.
In that regard, we note that Petitioner stated that there is concurrent district court litigation, where it is exploring any ongoing relationship between MiMedx and Snoasis.
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13 Institution Decision: Decision Denying Institution of Inter Partes Review

Document IPR2015-00669, No. 13 Institution Decision - Decision Denying Institution of Inter Partes Review (P.T.A.B. Aug. 18, 2015)
Shenaq teaches that “[i]mmunological testing of the amniotic and chorionic nerve conduits of the ... invention showed a minimal, nonsignificant immune response, thus, avoiding some of the inhibiting factors that could influence the regenerating nerve.” Id. at 3:5–9.
repeatedly with phosphate buffer solution or distilled water until clean, the amnion or chorion is then cross-linked either by exposure to gamma radiation or chemical cross-linking such as with glutaraldehyde, which sterilizes the tissue, provides protection against viral disease transmission, strengthens and permits remodeling the material from sheet to conduit form.
Shenaq teaches that it is also an object of the invention to provide a graft that comprises a cylindrical wall formed by sheets of sterilized collagen, Types I, II, and III, derived from human placenta from which the cellular material has been substantially removed.
Irradiating the amnion cross-links the collagen, sterilizes the tissue, provides animal protection against viral disease transmission and subsequent remodeling of the material from sheet to conduit or tubular form.
Notably, we agree with Patent Owner that Shenaq teaches a graft comprising sheets of sterilized collagen, Types I, II, and III, derived from human placenta, and from which the cellular material has been substantially removed.
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6 Order: Errata

Document IPR2015-00669, No. 6 Order - Errata (P.T.A.B. Mar. 9, 2015)
The Notice of Filing Date, mailed February 20, 2015 listed Musculoskeletal Transplant Foundation, Liventa Bioscience Inc., and Medline Industries, Inc. as the Petitioners in the caption.
The caption should have only listed Musculoskeletal Transplant Foundation.
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3 Notice of Filing Date Accorded to Petition: Notice of Filing Date Accorded to Petition

Document IPR2015-00669, No. 3 Notice of Filing Date Accorded to Petition - Notice of Filing Date Accorded to Petition (P.T.A.B. Feb. 20, 2015)
The petition for inter partes review in the above proceeding has been accorded the filing date of February 2, 2015.
For more information, please consult the Office Patent Trial Practice Guide, 77 Fed. Reg. 48756 (Aug. 14, 2012), which is available on the Board Web site at http://www.uspto.gov/PTAB.
Patent Owner is advised of the requirement to submit mandatory notice information under 37 C.F.R. § 42.8(a)(2) within 21 days of service of the petition.
The parties are advised that under 37 C.F.R. § 42.10(c), recognition of counsel pro hac vice requires a showing of good cause.
Such motions shall be filed in accordance with the “Order -- Authorizing Motion for Pro Hac Vice Admission” in Case IPR2013-00639, Paper 7, a copy of which is available on the Board Web site under “Representative Orders, Decisions, and Notices.” The parties are reminded that unless otherwise permitted by 37 C.F.R. § 42.6(b)(2), all filings in this proceeding must be made electronically in the Patent Review Processing System (PRPS), accessible from the Board Web site at http://www.uspto.gov/PTAB.
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17 Reply: Petitioners Reply in Support of Petitioners Request for Rehearing

Document IPR2015-00669, No. 17 Reply - Petitioners Reply in Support of Petitioners Request for Rehearing (P.T.A.B. Oct. 12, 2015)
Contrary to Patent Owner’s arguments, Petitioner “specifically identified all matters the party believes the Board misapprehended or overlooked” in its Request for Rehearing, as required by 37 C.F.R. § 42.71.
In opposing Petitioner’s Request for Rehearing, Patent Owner rehashes its argument that because the ‘701 Patent discloses that amnion cleaned too aggressively and appearing “clear” should be discarded due to the consequent removal of its fibroblast cellular layer, the “translucent” amnion of Wei does not retain its fibroblast cellular layer.
Wei’s specific teaching in this regard is that “the rehydrated product has an increased transparency than that of the [finished] dried product” (emphasis added).
Patent Owner further argues that Petitioner somehow improperly equated the Board’s reliance on the bamboo paper-like amnion description of Wei to its 20 micron thickness disclosure.
Other than the conclusory arguments advanced by its attorneys, Patent Owner cannot provide a single reason why a skilled person would understand such terms as teaching removal of the fibroblast cellular layer.
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