`____________________________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________________________________
`
`AGILA SPECIALTIES INC.
`
`AND MYLAN PHARMACEUTICALS INC.,
`
`Petitioners,
`
`v.
`
`CUBIST PHARMACEUTICALS, INC.,
`
`Patent Owner.
`____________________________________________
`
`Case IPR2015-00144
`
`Patent 8,058,238
`____________________________________________
`
`DECLARATION OF HENRY H. GU IN SUPPORT OF OPPOSITION TO
`MOTION TO CORRECT ACCORDED FILING DATE
`
`1
`
`CUBIST 2001
`AGILA v. CUBIST
`IPR2015-00144
`
`
`
`
`
`I, Henry H. Gu, declare as follows:
`
`1.
`
`I am Senior IP Counsel with Cubist Pharmaceuticals, Inc. (“Cubist”).
`
`I submit this declaration in support of Cubist’s Opposition to Motion to Correct
`
`Accorded Filing Date. I have personal knowledge of the facts set forth in this
`
`declaration and can testify competently to those facts.
`
`2.
`
`I have been IP Counsel with Cubist since October 2013. I have been a
`
`registered Patent Attorney since January 2006. I am familiar with the Patent and
`
`Trial Appeal Board’s rules.
`
`3.
`
`On October 24, 2014, Cubist received three packages containing
`
`service copies of seven Petitions for Inter Partes Review. Ms. Donna Larochelle,
`
`a legal secretary at Cubist, opened the packages and handed them over to me
`
`without removing any of the contents. As part of my responsibilities as IP
`
`Counsel, I reviewed the packages and the contents. The packages consisted of two
`
`FedEx mailing envelopes and one bankers box shipped via FedEx. The bankers
`
`box included four Petitions for Inter Partes Review of U.S. Patent No. 8,058,238
`
`and Exhibits 1001-1037. The packages did not contain a motion to request
`
`acceptance of a mailed petition.
`
`4.
`
`I first became aware that Petitioners (“Agila”) had submitted a
`
`Petition for Inter Partes Review to the Board by mail, along with an accompanying
`
`motion to request acceptance of the mailed petition, on November 21, 2014, during
`
`2
`
`
`
`the conference call held with Agila and the Board. To my knowledge, no one at
`
`Cubist was aware of the petition submitted by mail, or the accompanying motion,
`
`prior to this date. To my knowledge, Agila never served Cubist with a copy of its
`
`motion to request acceptance of its mailed petition.
`
`5.
`
`On December 3, 2014, I called the Board and spoke with Ms. Maria
`
`Vignone. I asked Ms. Vignone if the Board could provide Cubist with a copy of
`
`the motion to request acceptance of mailed petition filed by Agila. Later that same
`
`day, Ms. Vignone sent a copy of the motion to me by email.
`
`6.
`
`Attached hereto as Exhibit 2002 is a true and correct copy of the
`
`Motion to Request Acceptance of Mailed Petition for Inter Partes Review of U.S.
`
`Patent No. 8,058,238 Under 37 C.F.R. §42.6(b)(2)(i)(A) that was sent to me via
`
`email by Ms. Vignone on December 3, 2014.
`
`7.
`
`Attached hereto as Exhibit 2003 is a true and correct copy of an
`
`August 17, 2014 archived version of the USPTO.gov website page entitled “Patent
`
`Review Processing System (PRPS).” This August 17, 2014 archived version is
`
`available at https://web.archive.org/web/20140817025907/http:/www.uspto.gov/ip/
`
`boards/bpai/prps.jsp. I obtained this August 17, 2014 version on December 6,
`
`2014, by inputting the URL of the current USPTO.gov Patent Review Processing
`
`System (PRPS) website, http://www.uspto.gov/ip/boards/bpai/prps.jsp, into the
`
`Internet Archive “WayBack Machine,” available at https://archive.org/web/.
`
`3
`
`
`
`8.
`
`I declare that all statements made herein of my own knowledge are
`
`true and that all statements made on information and belief are believed to be true;
`
`and fithher that these statements were made with the knowledge that willful false
`
`statements and the like so made are punishable by fine or imprisonment, or both,
`
`under Section 1001 of Title 18 of the United States Code.
`
`Executed in Lexington, Massachusetts on December 8, 2014.
`
`Respectfully submitted,
`
`’I
`
`/’
`
`.
`
`Dated: DecemberS 2014
`
`
`
`1'L
`
`Henry H. Gu
`Registration No. 55,227
`
`
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