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`Paper No. ___
`Filed: July 12, 2018
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_____________________________
`
`MYLAN TECHNOLOGIES, INC.,
`Petitioner,
`v.
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`NOVEN PHARMACEUTICALS, INC.
`Patent Owner.
`
`_____________________________
`
`Case IPR2018-00174
`Patent 9,730,900
`_____________________________
`
`PETITIONER MYLAN TECHNOLOGIES, INC.’S
`REQUEST FOR REHEARING PURSUANT TO 37 C.F.R. § 42.71
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`Case IPR2018-00174
`Patent 9,730,900
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`TABLE OF CONTENTS
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`PRECISE RELIEF REQUESTED AND OVERVIEW ................................. 1
`I.
`SUMMARY OF THE CASE ........................................................................ 3
`II.
`III. ARGUMENT................................................................................................ 6
`A.
`Imprecision In Mueller Fig. 3 Made Any Material Difference. ........... 6
`B.
`Elsewhere. ........................................................................................ 11
`IV. CONCLUSION .......................................................................................... 15
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`The Decision Overlooks The Lack of Evidence Any Alleged
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`The Decision Overlooks That Chien Fig. 5 Discloses Flux Of
`Monolithic Patches, Not Multi-Layer Patches Depicted
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`Case IPR2018-00174
`Patent 9,730,900
`I.
`PRECISE RELIEF REQUESTED AND OVERVIEW
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`Mylan Technologies, Inc. (“Mylan,” or “Petitioner”) respectfully asks the
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`Board to reconsider its June 12, 2018 decision (Paper 8, “Decision”) not to institute
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`a trial regarding claims 1-23 of the ’900 patent. 37 C.F.R. § 42.71(c)-(d).
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`Petitioner respectfully submits that the Decision was limited in its
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`consideration of the contentions in the petition materials while overlooking various
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`contentions, as well as the fact that any conceivable imprecision in Dr. Brain’s
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`permeation values would be immaterial to the grounds of challenge. For example,
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`at page 18, the Decision states “Petitioner contends that ‘results [in Mueller] show
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`an estradiol flux achieved by Example 3 of 0.015 and 0.014 mg/cm2/day when
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`measured at 32 and 48 hours, respectively.” The Decision then rejects the asserted
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`ground of challenge addressing only this limited contention. But this is neither the
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`only contention advanced in the Petition materials, nor is it a contention
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`representing the full scope of Petitioner’s argument and evidence. Dr. Brain
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`identifies multiple examples, and testifies that, “from just these few examples, it is
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`clear Mueller teaches multiple time points at which Example 3 achieves a flux of
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`‘about 0.0125 mg/cm2/day[.]’” EX1002, ¶ 175. The Decision only addresses a few
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`of those examples, thereby overlooking additional contentions provided in the
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`petition materials.
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`Moreover, at page 20, the Decision states “the x-axis and y-axis of [Mueller
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`Figure 3] are not perpendicular to each other” and “[t]he deficiencies of Figure 3
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`are readily observable to the naked eye and when superimposed onto a grid.” The
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`Decision, however, overlooks the fact this is a minor copying artifact immaterial to
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`the analysis provided by Dr. Brain—particularly the examples provided by Dr.
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`Brain left unaddressed in the Decision. Petitioner respectfully submits this
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`immateriality is readily observable to the naked eye and from any reasonable
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`review of the Mueller priority document—an analysis Patent Owner avoids in its
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`carefully worded argument. See, e.g., 37 C.F.R. § 42.12(a)(2) & (a)(3).
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`The Decision denied institution of Ground 4 on the additional basis that the
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`Board was uncertain whether Chien Figure 5 depicts test results from a monolithic
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`patch or a multi-layer patch. The Decision overlooks Petitioner’s argument that
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`Chien Fig. 5 discloses flux using a monolithic patch, rather than multi-layer
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`embodiments clearly denoted elsewhere in Chien. See, e.g., Pet. 60-62. A
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`monolithic patch, by definition, does not have the upper or middle layer Patent
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`Owner speculated could have been tested to provide the graph in Chien Fig. 5.
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`Patent Owner’s expert’s speculation that Chien’s Fig. 5 might refer to a
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`multi-layer patch would have the POSA wear blinders and ignore the teachings set
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`forth in black and white of a prior art reference. When referring to results of
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`experiments with multi-layer patches instead of monolithic patches, Chien uses the
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`words “Tri-Layer” System, (Figs. 12-17) “Middle Layer,” and “Upper Layer.”
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`EX1009; see also id., 11:64-66 (multi-layer patches “have three layers in addition
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`to the backing layer and the peelable release liner.”).
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`Petitioner respectfully asks the Board to grant rehearing and institute trial on
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`claims 1-23 of the ’900 patent. To the extent the Board believes there is a genuine
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`issue of material fact as to the permeation values Dr. Brain identified or whether
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`Chien Fig. 5 discloses flux experiments for a monolithic patch, these questions
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`should be viewed in the light most favorable to the Petitioner and institution should
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`be granted. 37 C.F.R.§ 42.108(c).
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`II.
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`SUMMARY OF THE CASE
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`Ground 1 of the Petition explained that claims 1, 2, 8, 10-16, and 18-23 of
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`the ’900 patent are anticipated by Mueller, including by achieving a flux within the
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`range of from about 0.0125 to about 0.05 mg/cm2/day. The Petition explained that
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`Dr. Brain calculated flux from Mueller Fig. 3 by taking the difference between
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`drug-permeation values and dividing it by the amount of time passed between two
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`time points, the same way Patent Owner’s expert calculated flux during
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`prosecution. Pet. 7, 9-10, 32-33. It relied on Dr. Brain’s testimony to establish that
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`Mueller Fig. 3 discloses achievement of an estradiol flux of 0.012 mg/cm2/day at
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`24 hours, 0.015 mg/cm2/day at 32 hours, and 0.014 mg/cm2/day at 48 hours. Id. It
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`also relied on Dr. Brain’s testimony that the average flux was 0.013 mg/cm2/day
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`over the first 48 hours, 0.013 mg/cm2/day between 8 and 32 hours, and 0.014
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`mg/cm2/day between 24 and 48 hours. Id., 33-34. The Petition also noted that the
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`claimed range of “about 0.0125 to about 0.05 mg/cm2/day” was satisfied by a flux
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`as low as 0.01125 mg/cm2/day (±10% of 0.0125), meaning that the flux of
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`Example 3 at 24 hours (0.012 mg/cm2/day) and the average flux from 0-72 hours
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`(0.0113 mg/cm2/day) each satisfy the claimed flux. Pet. 34-35.
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`Ground 2 explained that claims 1, 2, and 8-23 are obvious over Mueller and
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`Vivelle-Dot Label, Ground 3 explained that claims 3-7 are obvious in further view
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`of Kanios, and Ground 4 explained that claims 1-23 are obvious in further view of
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`Chien. Pet. 44, 52, 59. The Petition explained that portions of Chien’s disclosure,
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`including Fig. 5, relate to “monolithic transdermal drug delivery systems similar to
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`those of Mueller that comprise an adhesive polymer matrix layer containing
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`estradiol, a backing layer, and a release liner.” Pet. 60; EX1002, ¶¶265-67, 269.
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`Chien Fig. 5 discloses that increasing the coating thickness of the adhesive
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`polymer matrix increases estradiol flux. Pet. 60-62.
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`Patent Owner’s preliminary response (POPR) argued that “imprecisions in
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`[Mueller] Fig. 3 would have prevented a POSA from trying to read specific
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`numerical flux values from the Figure.” Paper 6 at 45 (citing EX2001, ¶158). It
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`also argued that Chien discloses multi-layer patches as an alternative to monolithic
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`patches. Paper 6 at 21 (“TDSs described in Chien have varying configurations,
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`some of which are multi-layer systems” (citing EX2001, ¶¶102-04)). Relying on its
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`expert Dr. Williams, Patent Owner thus speculated that Chien Fig. 5 could describe
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`a multi-layer patch and that, if so, Chien Fig. 5 could have evaluated the effect on
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`estradiol flux of increasing thickness of an upper adhesion layer or the thickness of
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`a middle layer separating the upper layer from the drug-containing layer.
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`After denying Petitioner’s request to submit a reply to the POPR, the Board
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`issued the Decision. The Decision (at 9) correctly determined that the term “about”
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`in the claim term “an estradiol flux of from about 0.0125 to about 0.05
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`mg/cm2/day” means “plus or minus 10%” of each term. However, the Board
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`denied institution, stating:
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`[B]ecause of the greater than 90 degree angle between the x- and y-
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`axes in Fig. 3, it is not clear to us on this record that an ordinarily
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`skilled artisan would have selected the same estradiol-permeation
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`values as Petitioner for each time point provided in the graph. For
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`example, Petition and Dr. Brain select an estradiol permeation of 16
`µg/cm2 at 32 hours. Pet. 33; Ex. 1002 ¶¶ 158-59. It is unclear to us,
`however, whether this value would change if only the y-axis is rotated
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`to be perpendicular to the x-axis, or if only the x-axis is rotated, or if
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`both axes are rotated to create a graph with an accurate 90 degree
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`angle.
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`Paper 8, 21-22. The Decision further stated: “In addition, Petitioner and Dr. Brain
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`do not address the impact on flux calculations if the estradiol permeation at 32
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`hours is slightly higher or slightly lower than 16 µg/cm2.” Id., 22.
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`With respect to Ground 4, the Decision denied institution on the basis that
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`“Chien describes a multi-layer transdermal dosage form, but fails to identify the
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`layer to which the ‘coating’ data in Fig. 5 refers.” Id., 23.
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`III. ARGUMENT
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`A. The Decision Overlooks The Lack of Evidence Any Alleged
`Imprecision In Mueller Fig. 3 Made Any Material Difference.
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`While the Board relied on an identified image distortion in Mueller Fig. 3,
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`neither the Patent Owner nor the Board ever evaluated the materiality of this
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`distortion to Dr. Brain’s analysis. A reasonable assessment on this point illustrates
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`that, to the extent there is any distortion, it is immaterial to Dr. Brain’s conclusion
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`that a person of ordinary skill would view the Mueller reference as providing
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`disclosure within the scope of the claim. The Decision thus overlooks that the
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`Petition demonstrated that Mueller Example 3 achieved a flux of at least about
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`0.0125 mg/cm2/day (i.e., at least 0.01125 mg/cm2/day) at multiple time points,
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`regardless of any uncertainty about precise permeation values in Dr. Brain’s
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`illustrative examples.
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`In order to even raise a genuine question of material fact regarding the flux,
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`the permeation values of Mueller Fig. 3 would have to plausibly be so low that Fig.
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`3 never achieves a slope (flux) within the claimed range. This is not a realistic
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`scenario. Because the claimed range is from “about” 0.0125 mg/cm2/day, and
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`because “about” means plus or minus 10%, any uncertainty was immaterial unless
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`Fig. 3 never achieved a slope (flux) of at least 0.01125 mg/cm2/day. The average
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`flux achieved through 48 hours, which was relied on in the Petition as discussed
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`below, provides one clear demonstration of disclosure falling well within the
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`claimed range and which remains unrebutted.
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`Specifically, Dr. Brain identified the permeation value at 48 hours as 25
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`µg/cm2 and the average flux between 0 and 48 hours as 0.013 mg/cm2/day. Pet. 33;
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`EX1002, ¶¶127, 159, 173. This is well above 0.01125 mg/cm2/day. The minimum
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`permeation value at 48 hours that would still yield an average flux within the
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`claimed range based on the “about” claim construction would be 22.5 ((22.5-
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`0)/(48-0)*24/1000 = 0.01125 mg/cm2/day, ±10% of 0.0125 mg/cm2/day). That
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`22.5 threshold is represented by the horizontal red line in the annotated Mueller
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`Fig. 3 below.
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`There is no evidence, nor is there any plausible scenario, that a POSA would
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`read Mueller Fig. 3 to disclose a permeation value at 48 hours of less than 22.5.
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`This fact is readily apparent to the naked eye: it would be unreasonable to conclude
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`the permeation value at 48 hours was lower than 22.5. Given that any minor
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`distortion appears only at the distal right side of the graph, it also is apparent from
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`the grid used in the Decision that the distortion has no meaningful effect for at least
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`the first 48 hours (the left half of the graph).
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`Moreover, there is no plausible way in which correcting the minor distortion
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`in Mueller Fig. 3 would reduce the permeation value at 48 hours below 22.5. To
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`the extent the distortion contributed to any imprecision in the permeation values in
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`Mueller Fig. 3, correcting that distortion would only make the permeation values
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`go up, if any change resulted at all. Any argument Patent Owner advances to the
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`contrary is misleading and fails to consider the full scope of material relevant to
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`that argument. See 37 C.F.R. § 42.12(a)(2), (a)(3).
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`The conclusion that correcting the distortion would not decrease permeation
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`values is corroborated by the corresponding Fig. 3 in the Mueller priority
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`document, which does not have the copying distortion. IPR2018-01119, EX1042 at
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`10 (Fig. 3). This image underscores the credibility of Dr. Brain’s analysis. As
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`illustrated below, even when the axes are perfectly square, the permeation value at
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`48 hours does not fall below the 22.5 threshold that would be required to take the
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`average flux from 0 to 48 hours outside the claimed flux range. As Dr. Brain
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`explained in a related case, “the difference is so small, it makes no material
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`difference in my flux calculations for Mueller Fig. 3.” IPR2018-01119, EX1002 ¶
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`120. The Decision overlooks the lack of evidence one would expect the opposite to
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`occur.
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`To the extent the Board was uncertain as to the exact precision of the values Dr.
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`Brain identified, there is certainty that any conceivable imprecision has no material
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`effect on Dr. Brain’s conclusion that Mueller’s disclosure falls within the scope of
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`the challenged claim.
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`The argument regarding the difference of uncertainty as to precision and
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`uncertainty whether any conceivable imprecision would have no material effect on
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`the analysis stands for all of the examples identified by Dr. Brain. The average flux
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`between 0 and 48 hours is just one example. The Petition explained that the
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`average flux spanning several other time points was large enough to fall within the
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`claimed flux range with room to spare. Regardless of what permeation value the
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`Board thinks should be identified at 32 hours, for example, this change would not
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`impact the average flux between 24 and 48 hours (0.014 mg/cm2/day), between 0
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`and 48 hours (0.013 mg/cm2/day), or between 0 and 72 hours (0.0113
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`mg/cm2/day), each of which satisfies the claimed flux range. Pet. 32-35, 46;
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`EX1002, ¶¶161-162, 175, 211. The Petition demonstrated that Mueller Example 3
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`achieved flux values well above the minimum claimed values at multiple data
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`points and also based on the average flux over several days. The Decision thus
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`overlooks that these flux and average flux values render immaterial Patent Owner’s
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`hypothetical concerns about “precision.”
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`The Decision questions whether the permeation value at 32 hours is
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`precisely 16, but overlooks the fact that whether the value is slightly higher or
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`slightly lower is immaterial because the flux at that time point still falls within the
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`claimed range. Using the same calculations demonstrated by Dr. Brain and in the
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`Decision, even if the permeation value at 32 hours was slightly lower (e.g., 15)
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`than the value of 16 that Dr. Brain identified, the fluxes at 32 hours (0.012
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`mg/cm2/day = ((15-11)/(32-24))*24/1000) and 48 hours (0.015 mg/cm2/day = ((25-
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`15)/(48-32))*24/1000) would still be within the claimed range (i.e., larger than
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`0.01125 mg/cm2/day). Similarly, if the permeation value at 32 hours were slightly
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`higher (e.g., 17) than the value Dr. Brain identified, the fluxes at 32 hours (0.018
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`mg/cm2/day = ((17-11)/(32-24))*24/1000) and 48 hours (0.012 mg/cm2/day = ((25-
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`17)/(48-32))*24/1000) would still be well within the claimed range. The Board’s
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`decision thus turns on “uncertainty” regarding a question of fact that makes no
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`material difference to the claimed flux limitation.
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`B.
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`The Decision Overlooks That Chien Fig. 5 Discloses Flux Of
`Monolithic Patches, Not Multi-Layer Patches Depicted Elsewhere.
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`In denying institution on Ground 4, the Decision erroneously resolved a fact
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`question raised by Patent Owner’s declarant without taking the evidence “in the
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`light most favorable to the petitioner for purposes of deciding whether to institute
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`inter partes review.” 37 C.F.R.§ 42.108(c). In so doing, the Decision overlooks
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`Petitioner’s evidence that Chien Fig. 5 discloses that flux of a monolithic patch
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`increases as the coating thickness of the estradiol-containing polymer adhesive
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`layer increases. The Petition explained that portions of Chien’s disclosure relate to
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`“monolithic transdermal drug delivery systems similar to those of Mueller that
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`comprise an adhesive polymer matrix layer containing estradiol, a backing layer,
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`and a release liner.” Pet. 13-15, 60-62; EX1009, 2:45-3:2, 3:41-4:36, 7:28-39,
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`8:36-41; EX1002, ¶¶264-66, 268, 270-73. The Petition thus relied on Dr. Brain’s
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`testimony establishing that Chien Fig. 5 discloses increasing flux as one increases
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`the thickness of the estradiol-containing adhesive polymer layer. Pet. 13-15, 60-62;
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`EX1002, ¶¶148 (“Chien teaches increasing coat weight of the adhesive coating
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`containing estradiol as a method of increasing estradiol flux”), 265 (“increasing
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`the coat thickness of a monolithic matrix-type transdermal estradiol delivery
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`system from, e.g., 150 µm to 200 µm, as shown in Fig. 5 of Chien, provides an
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`almost two fold increase in flux (~1 mg/cm2/h to ~1.8 mg/cm2/h).”).
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`Of course, a monolithic patch contains only a single coating layer that
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`adheres directly to the skin and that also contains the drug. See, e.g., EX1009,
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`2:24-3:17, 10:48-67 (describing manufacture and structure of monolithic patch);
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`see also EX1002, ¶¶145 (“estrogen-containing polymer layer to adhere itself to the
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`skin”), 268 (“Chien teaches: A monolithic transdermal drug delivery system is
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`applied to the skin….”). It is thus distinct from multi-layer patches that
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`additionally have an upper layer or upper and middle polymer layers, described
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`elsewhere in Chien. See, e.g., EX1009, 3:18-40 (“Optionally, an additional [upper]
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`adhesive layer [containing an enhancing agent] can be formed…[A]nother [middle
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`or separating] layer can be included in the dosage units between the estrogen-
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`containing adhesive polymer layer and the adhesive layer….”).
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`Patent Owner relied on its expert (Dr. Williams) to point out that other
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`portions of Chien disclose multi-layer patches as an alternative to its monolithic
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`patches. Paper 6 at 21 (“TDSs described in Chien have varying configurations,
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`some of which are multi-layer systems.”). Dr. Williams relied on the “Brief
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`Description of the Drawings” section of Chien as demonstrating that “Chien
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`provides no description of the ‘coating’ at issue” in Fig. 5 and thus argued that “a
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`POSA would not know from Chien the identity of the ‘coating’ that purportedly
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`was studied for Fig. 5,” whether it was “the estrogen-containing polymer adhesive
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`layer, or the ‘additional adhesive layer,’ or the ‘another layer’” between the two.
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`EX2001, ¶¶102-103 (citing EX1009, 2:45-3:40). Neither Patent Owner nor Dr.
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`Williams pointed out that the Brief Description of the Drawings expressly
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`describes when Chien’s figures described multi-layer patches. See, e.g., EX1009,
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`5:11-6:4 (“FIG. 17 is a graph comparing human cadaver skin permeation profiles
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`of estradiol from a Rutgers tri-layer dosage unit as compared to Estraderm.”).
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`Indeed, Chien’s Brief Description of the Drawings expressly describes when
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`Chien’s figures evaluated the effect of increasing the thickness of a middle layer
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`“separating” the drug-containing layer from an upper enhancer-containing layer
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`(Fig. 12) or of increasing the thickness “of enhancer-containing upper layer” (Fig.
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`15). Id. Figs. 12 and 15 each have a heading reading “Tri-layer Transdermal
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`Estradiol Delivery System.” There is no reference in Chien Fig. 5 or its written
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`description to a multi-layer patch, an upper layer, or a middle layer, and there is no
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`reason (beyond unsupported speculation) to think Chien Fig. 5 relates to a multi-
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`layer patch instead of a monolithic patch, as Dr. Brain identified. EX1002, ¶¶145-
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`148, 264-66.
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`Patent Owner’s argument that Chien Fig. 5 depicts results from a multi-layer
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`patch also misreads the prior art, which teaches that increasing the thickness of
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`multi-layer patches has a different (often opposite) effect than what was depicted
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`in Chien Fig. 5. For example, Chien Fig. 12 discloses that increasing the thickness
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`of the middle layer in a tri-layer patch decreases flux (the opposite effect observed
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`in Fig. 5). As another example, Chien Fig. 15 discloses that increasing the
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`thickness of the enhancer-containing upper layer has a very different effect on flux
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`(achieving a maximum flux of 0.5 µg/cm2/hr at 300 microns ) than that observed in
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`Fig. 5 (reporting a minimum flux of 0.5 µg/cm2/hr at 100 microns and an almost 6-
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`fold increase in flux at 300 microns of thickness). In contrast, as explained in the
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`Petition and by Dr. Brain, Chien Fig. 5 discloses increasing drug flux by increasing
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`the thickness of the drug-containing adhesive polymer layer of a monolithic patch.
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`This relationship is consistent with other prior art references that teach this same
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`relationship for monolithic patches. See, e.g., Pet. 18 (“Kim also teaches that
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`increasing the coat weight (thickness) of the adhesive polymer matrix of a
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`monolithic, matrix-type patch increases flux.” (citing EX1010 (Kim), 79, 82;
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`EX1002, ¶¶101-102; EX1014 (Ghosh), 287); see also Pet. 3-4, 63 n.1 (Kim, Ghosh
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`(EX1014, 287-88) and Bronaugh (EX1026, 86, 89) teach that increasing the coat
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`weight of a monolithic transdermal patch increases flux); see also EX1010, 80
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`(preparation of monolithic patches); EX1014, abstract (monolithic system), 286
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`(preparation of “single” layer monolithic patch).
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`Patent Owner’s argument that Chien Fig. 5 addresses a multi-layer patch
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`such as was addressed in Chien Figs. 12 and 15 lacks substantial evidence. To the
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`extent the Board believes that Dr. Williams’s testimony raises a genuine question
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`whether Chien Fig. 5 relates to increasing the thickness of the estradiol-containing
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`polymer adhesion layer of a monolithic patch, Petitioner respectfully submits that
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`this issue should be viewed in the light most favorable to the Petitioner for the
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`purposes of deciding whether to institute IPR. 37 C.F.R. § 42.108(c).
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`IV. CONCLUSION
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`For the reasons set forth above and in the Petition, Petitioner respectfully
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`requests rehearing and institution of inter partes review of the challenged claims of
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`the ’900 patent.
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`Dated: July 12, 2018
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`Respectfully submitted,
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`/ Steven W. Parmelee /
` Steven W. Parmelee, Lead Counsel
` Reg. No. 31,990
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`CERTIFICATE OF SERVICE
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`
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`This is to certify that I caused to be served a true and correct copy of the
`
`foregoing Petitioner Mylan Technologies, Inc.’s Request for Rehearing Pursuant to
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`37 C.F.R. § 42.71, on this 12th day of July, 2018, on the Patent Owner at the
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`correspondence address of the Patent Owner as follows:
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`
`
`
`
`Courtenay C. Brinckerhoff
`Jason N. Mock
`FOLEY & LARDNER LLP
`CBrinckerhoff@foley.com
`JMock@foley.com
`FIRM-Noven-MylanIPRs@foley.com
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`Dated: July 12, 2018
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`
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`Respectfully submitted,
`
`/ Steven W. Parmelee /
` Steven W. Parmelee, Lead Counsel
` Reg. No. 31,990
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`-16-
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