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Palette Life Sciences, Inc. v. Incept LLC

Docket IPR2020-00003, Patent Trial and Appeal Board (Oct. 14, 2019)
Erica Franklin, Tina Hulse, Ulrike Jenks, presiding
Case TypeInter Partes Review
Patent8257723
Patent Owner Incept LLC
Petitioner Palette Life Sciences, Inc.
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8 Institution Decision: Trial Instituted Document

Document IPR2020-00003, No. 8 Institution Decision - Trial Instituted Document (P.T.A.B. Apr. 17, 2020)
The Specification explains that “[b]iodegradation may be measured by palpitation or other observations to detect the change in volume of a filler after its introduction into a patient.” Id. at 5:1–3.
After introduction into the body, the filler may increase in volume and form a gel in situ through a variety of processes, depending on the material.
The November 2019 TPG nowhere indicates that mere alternative arguments that are different from each other constitute sufficient justification for filing multiple petitions.
For the foregoing reasons, based on the circumstances of this case, we exercise our discretion under 35 U.S.C. § 314(a) and deny the Petition requesting institution of an inter partes review of claims 1–24 of the ’723 patent.
Patent US 8,257,723 B2 For PETITIONER: Jeffrey Guise Lora Green Richard Torczon Lorelei Westin Kristin Havranek Tasha Thomas
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4 Notice of Filing Date Accorded to Petition: Notice of Accord Filing Date

Document IPR2020-00003, No. 4 Notice of Filing Date Accorded to Petition - Notice of Accord Filing Date (P.T.A.B. Oct. 23, 2019)
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.
Jeffrey W. Guise Lora Green Richard Torczon Lorelei Westin Kristin Havranek Tasha Thomas
Many non-profit organizations, both inside and outside the intellectual property field, offer alternative dispute resolution services.
If the parties actually engage in alternative dispute resolution, the Case IPR2020-00003 Patent 8,257,723 B2 PTAB would be interested to learn what mechanism (e.g., arbitration, mediation, etc.) was used and the general result.
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3 Other Not for motions: Petitioner¿¿¿s Explanation of Multiple Petitions Challenging Patent No 8,257,723 and Ranking of Petitions

Document IPR2020-00003, No. 3 Other Not for motions - Petitioner¿¿¿s Explanation of Multiple Petitions Challenging Patent No 8,257,723 and Ranking of Petitions (P.T.A.B. Oct. 14, 2019)
The challenged independent claim requires introduction of "a biocompatible, biodegradable filler between an organ and a nearby tissue to increase a distance between the organ and the tissue," "wherein the filler is introduced as an injectable material and is a gel in the patient."
Wallace and Ball teach or suggest the introduction of a gel into a space between an organ and a nearby tissue, without the use of second filler material, such as a biodegradable envelope.
Specifically, the challenges based on Burg are based on the use of the transition phrase "comprising" in the independent claim, which does not preclude embodiments that use multiple fillers—i.e., it does not preclude embodiments where a filler, in the form of a balloon or envelope, contains a second filler, in the form of a liquid or gel.
Namely, the '723 patent teaches an embodiment using a filler that comprises a device having a reversible volume, such as a balloon, wherein the balloon "may be introduced, inflated, and then deflated after a dose of radiation has been administered, or recovered after the radiation treatment has been completed."
First, the approaches involve different art and are drawn to different embodiments disclosed by the '723 patent specification.
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2 Petition: Petition for Inter Partes Review

Document IPR2020-00003, No. 2 Petition - Petition for Inter Partes Review (P.T.A.B. Oct. 14, 2019)
At its core, the claimed invention aims to protect healthy tissues and organs from unsafe levels of exposure to radiation—a fundamental tenet that has been recognized by those in the art since the inception of radiation therapy.
For example, in the 1980s, absorbable polyglycolic acid mesh slings were developed, which could be surgically sewn above the pelvis site specifically to minimize radiation toxicity in the pelvic cavity.
Accordingly, prior to June 2002, compositions containing biocompatible, biodegradable polymers, which are capable of forming gels in vivo, such as HA and collagen, had been proposed for use in preventing radiation-induced toxicity in abdominal tissue.
Independent Claim 1 a. [1.Preamble] A method of delivering a therapeutic dose of radiation to a patient comprising Burg discloses “an absorbable implantable tissue expander device that can be used in surgeries as a gradually diminishing space filler.” EX1041, Abstract; EX1003, ¶108.
Respectfully submitted, Je uise, Reg. No. 34,613 Lead Counsel for Petitioner Palette CERTIFICATION UNDER 37 C.F.R. §42.24(d) Under the provisions of 37 C.F.R. §42.24(d), the undersigned hereby certifies that the word count for the foregoing Petition for Inter Partes Review totals 6,850, which is less than the 14,000 allowed under 37 C.F.R. 42.24(a)(i).
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7 Preliminary Response: Patent Owner Preliminary Response

Document IPR2020-00003, No. 7 Preliminary Response - Patent Owner Preliminary Response (P.T.A.B. Jan. 23, 2020)
Patent Owner Preliminary Response Dr. Dicker cites several passages from Burg in support of his testimony, but none of them discloses what he relies on them for.
Because none of the passages Dr. Dicker cites addresses the supposed biodegradability of the gel that fills the envelope, Dr. Dicker’s assertion that Burg discloses a “biodegradable” gel is unsupported and therefore entitled to little or no ...
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5 Mandatory Notice: Patent Owner Mandatory Notices

Document IPR2020-00003, No. 5 Mandatory Notice - Patent Owner Mandatory Notices (P.T.A.B. Nov. 4, 2019)
Patent Owner Mandatory Notices Pursuant to 37 C.F.R. § 42.8, Patent Owner Incept LLC submits the following Mandatory Notices.
Related Matters Under 37 C.F.R. § 42.8(b)(2) Patent Owner is not presently aware of any proceedings other than those cited in the Petition.
Service information for lead and back-up counsel is provided in the designation of lead and back-up counsel, above.
Service of any documents via hand-delivery may be made at the postal mailing address of the respective lead and back-up counsel designated above.
Power of Attorney A Power of Attorney appointing the above-designated counsel is being filed concurrently with these Mandatory Notices.
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6 Power of Attorney: Patent Owner Power of Attorney

Document IPR2020-00003, No. 6 Power of Attorney - Patent Owner Power of Attorney (P.T.A.B. Nov. 4, 2019)
Patent Owner Power of Attorney Pursuant to 37 C.F.R. § 42.10(b), Patent OWner Incept LLC (owner of the entire right, title, and interest as evidenced by an assignment from the inventor(s) recorded at Reel 020577, Frame 0041) appoints the practitioners associated with Customer Number 26853, including the following lead and back-up counsel, as its attorneys to transact all business in the United States Patent and Trademark Office associated with the above—captioned Inter Partes Review.
The New York Times Building One CityCenter
New York, NY 10018 Washington, DC 20001
The individual signing below has the authority to execute this document on behalf of Patent Owner Incept LLC.
7/1/40 v 52 20/3 Date Signature AmdflfflEfiT S~ SAMHNQZ Name earn/£4214 1.. EA R‘M/Eg Title
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