trials@usptp.gov
`571-272-7822
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`IPR2016-01034, Paper No. 42
`July 24, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
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`OSI PHARMACEUTICALS, LLC,
`and GENENTECH, INC.,
`Petitioner,
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`v.
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`ARCH DEVELOPMENT CORP. and
`DANA-FARBER CANCER INSTITUTE, INC.,
`Patent Owner.
`______________
`
`Case IPR2016-01034
`Patent 7,838,512 B1
`______________
`
`Record of Oral Hearing
`Held: Tuesday, June 20, 2017
`
`
`
`
`Before: LORA M. GREEN, TINA E. HULSE, and ROBERT A. POLLOCK,
`Administrative Patent Judges
`
`The above-entitled matter came on for hearing on Tuesday, June 20, 2017, at
`the U.S. Patent and Trademark Office, 600 Dulany Street, Alexandria,
`Virginia, in Courtroom A, at 1:00 p.m.
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`571-272-7822
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`IPR2016-01034, Paper No. 42
`July 24, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`OSI PHARMACEUTICALS, LLC,
`and GENENTECH, INC.,
`Petitioner,
`
`v.
`
`ARCH DEVELOPMENT CORP. and
`DANA-FARBER CANCER INSTITUTE, INC.,
`Patent Owner.
`______________
`
`Case IPR2016-01034
`Patent 7,838,512 B1
`______________
`
`Record of Oral Hearing
`Held: Tuesday, June 20, 2017
`
`
`
`
`Before: LORA M. GREEN, TINA E. HULSE, and ROBERT A. POLLOCK,
`Administrative Patent Judges
`
`The above-entitled matter came on for hearing on Tuesday, June 20, 2017, at
`the U.S. Patent and Trademark Office, 600 Dulany Street, Alexandria,
`Virginia, in Courtroom A, at 1:00 p.m.
`
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`Case IPR2016-01034
`Patent 7,838,512 B1
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`A P P E A R A N C E S
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`ON BEHALF OF THE PETITIONER:
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`DAVID L. CAVANAUGH, ESQUIRE
`MARGARETA K. SORENSON, ESQUIRE
`WILMER, CUTLER, PICKERING, HALE AND DORR, LLP
`1875 Pennsylvania Avenue, NW
`Washington, DC 20006
`(202) 663-6025
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`EMILY R. WHELAN, ESQUIRE
`TIMOTHY A. COOK, ESQUIRE
`WILMER, CUTLER, PICKERING, HALE AND DORR, LLP
`60 State Street
`Boston, MA 02109
`(617) 526-6567
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`MATTHEW I. KREEGER, ESQUIRE
`MORRISON & FOERSTER, LLP
`425 Market Street
`San Francisco, CA 94105-2482
`(415) 268-6467
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`Case IPR2016-01034
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`ON BEHALF OF THE PATENT OWNER:
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`DEANN F. SMITH, ESQUIRE
`FOLEY HOAG, LLP
`155 Seaport Boulevard
`Boston, MA 02210-2600
`(617) 832-1000
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`PETER A. SULLIVAN, ESQUIRE
`STEPHEN KENNY, ESQUIRE
`FOLEY HOAG, LLP
`1540 Broadway
`New York, NY 10036
`(646) 927-5500
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`P R O C E E D I N G S
` JUDGE POLLOCK: Please be seated.
` Good afternoon. This is the final hearing in
`2016-01034. I'm Judge Pollock. With me is Lead Judge Green.
`Judge Hulse is joining us remotely.
` As set forth in the hearing order, each side will
`have 60 minutes. Petitioner will go first, followed by
`patent owner. Petitioner may reserve time for rebuttal.
` The panel is familiar with the record and has an
`open mind regarding the outcome. Consequently, we are keenly
`interested in your presentations today. But before we begin
`the substance of the hearing, I would ask the parties to
`introduce themselves.
` Petitioner, would you please introduce yourself
`and your colleagues.
` MS. WHELAN: Emily Whelan of WilmerHale. With me
`is lead counsel David Cavanaugh. Here at counsel table with
`me is Tim Cook. And, also, Matthew Kreeger of Morrison &
`Foerster.
` JUDGE POLLOCK: Welcome. Would you like to
`reserve any time for rebuttal?
` MS. WHELAN: Yes, we would.
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` JUDGE POLLOCK: How much?
` MS. WHELAN: We'll plan on 15 minutes.
` JUDGE POLLOCK: Would patent owner please
`introduce yourself and your colleagues.
` MS. SMITH: Sure. Hi. I'm Deann Smith. I am a
`partner at Foley Hoag. And with me is Peter Sullivan and
`Steve Kenny.
` JUDGE POLLOCK: Thank you. A few matters of
`housekeeping before we begin. First, I'd like to remind the
`parties that this hearing is open to the public and a full
`transcript of the hearing will be made part of the record.
` Second, we are aware that patent owner has filed a
`motion to exclude, which the parties are welcome to address
`during your allotted time today but need not. We do not
`expect to rule on this motion at the hearing but will address
`it in our final written decision.
` We also note that both parties have raised
`objections to certain demonstrative exhibits. While you will
`be able to refer to your demonstratives during the hearing,
`they are not part of the record of this hearing.
`Accordingly, we will not rely on new arguments in the final
`written decision, nor will we rely on evidence such as may be
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`excluded pursuant to patent owners' evidentiary motion.
`Accordingly, we take your objections under advisement.
` When discussing any particular demonstrative,
`please refer to it by slide or page number to help maintain a
`clear transcript. This is particularly important today, as
`Judge Hulse is joining us remotely and may be following a
`courtesy copy of the exhibits rather than the screen that you
`may be showing.
` Finally -- this is directed to patent owner -- we
`note that Exhibit 2010, the Eastman deposition transcript, is
`cited by page and line number in the patent owner response,
`but the exhibit itself is not numbered. I encourage you to
`submit within five business days a replacement copy of
`Exhibit 2010 numbered in accord with the patent owner
`response or this evidence may not be considered.
` Petitioner, you have the burden of showing
`unpatentability of the challenged claims. Please begin.
` MS. WHELAN: Good afternoon, your Honors. We
`understand that the AV isn't working this afternoon, so we do
`have extra hard copies for the judges here, if you would
`like -- of the demonstratives.
` JUDGE POLLOCK: That would be fine. Thank you.
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` MS. WHELAN: As shown on slide 2, petitioners'
`presentation today will include three parts: First, a brief
`introduction and description of the technology and claims at
`issue; second, a few words about claim construction; and
`third, I will address each of the two instituted invalidity
`grounds.
` The challenged claims of the '512 patent broadly
`cover methods of administering any chemotherapeutic DNA-
`damaging agent in combination with any low molecular weight
`tyrosine kinase inhibitor.
` The claims include statements of purpose and
`function, but there is nothing new about these limitations.
`The claimed combination simply was not new.
` Petitioners offered ample evidence of the
`challenged claims' obviousness over Honma and Akinaga in
`combination with additional references. In particular,
`petitioner submitted a 114-page declaration from Dr. Alan
`Eastman, an expert in cancer biology who's a tenured
`professor at Dartmouth.
` As summarized on slide 3, in response, patent
`owner submitted only a 7-page declaration from one of the
`'512 patent's inventors, Dr. Donald Kufe.
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` Dr. Kufe has a financial interest in the outcome
`of this proceeding which he did not disclose before being
`cross-examined.
` Dr. Kufe did not review the petition or
`Dr. Eastman's declaration before offering his opinions, and
`he did not offer his opinions from the perspective of a
`person of ordinary skill in the art.
` These --
` JUDGE HULSE: Counsel, can I interrupt you just
`for a second? So, I'm looking at the Kufe declaration,
`paragraph seven, paragraph five, and he talks about, quote,
`for paragraph seven, "One ordinarily skilled in the art would
`not expect such a modest production of cell population when
`referring to Honma." So, what was he -- from what
`perspective do you think that he was entering -- or, you
`know, opining on from that perspective or from -- in that
`paragraph?
` MS. WHELAN: Well, he testified in his deposition
`that he offered his opinions from his perspective as an
`inventor, and he did not define in his declaration who he
`believed was someone of ordinary skill in the art.
` JUDGE HULSE: Did he say that counsel -- patent
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`owners' counsel told him what this person of ordinary skill
`in the art was at the time?
` MS. WHELAN: I don't remember him saying that one
`way or the other.
` JUDGE HULSE: And was he a person of ordinary
`skill in the art at the time? Doesn't he have an M.D. with
`several years of industry experience?
` MS. WHELAN: I believe that he was a person of
`ordinary skill.
` JUDGE HULSE: Thank you.
` MS. WHELAN: Dr. Kufe also did not address any
`secondary considerations to support nonobviousness and, as
`stated in the petition, petitioners still are not aware of
`any such evidence.
` The evidence overwhelmingly supports the
`obviousness of the challenged claims.
` Slides 4 through 6 provide brief technology
`background. As shown on slide 5, the challenged claims
`involve tyrosine kinase inhibitors, many of which have been
`well-known since the 1980s.
` It was also known since the 1980s that tyrosine
`kinases are involved in cell-signaling pathways implicated in
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`cellular processes, including cell growth and death.
` Tyrosine kinase inhibitors can disrupt these
`signaling pathways and so modulate cell growth and death,
`which makes tyrosine kinase inhibitors potentially useful in
`the treatment of cancer.
` As shown on slide 6, cell growth is also regulated
`by the cell cycle, the process by which cells copy their DNA
`and divide. If a cell divides with damaged DNA, it's likely
`to die. Chemotherapeutic DNA-damaging agents or chemotherapy
`drugs work by triggering this type of death.
` The cell cycle includes several checkpoints that
`test for DNA damage and pause the cell cycle if damage is
`detected. These checkpoints may limit the effectiveness of
`DNA-damaging agents used to treat cancer.
` This was also known in the prior art by 1994, and
`many research groups had studied ways to disrupt the
`checkpoints to limit their effect. The examiner raised some
`of this art during prosecution of the '512 patent, and patent
`owners were only able to overcome it with the declaration
`from Dr. Kufe arguing that the combination was
`counterintuitive. But the -- as the petition and Dr. Eastman
`have explained, it was not. The rationale underlying the
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`combination had been set out and articulated in the
`literature before.
` The '512 patent does not purport to identify any
`new tyrosine kinase inhibitors, nor any new DNA-damaging
`agents. Instead, it broadly claims a method of treating
`cancer using any combination of these two types of drugs.
` Slide 7 shows claim 1 is representative of the
`very broad challenged claims. The steps of the claim method
`are administering a chemotherapeutic DNA-damaging agent and
`administering a low molecular weight tyrosine kinase
`inhibitor to a patient.
` Moving to slide 8 and claim construction, the
`board has already addressed claim construction in the
`institution decision.
` From petitioners' perspective, the constructions
`in the institution decision are correct, and there's no need
`to revisit them.
` Patent owners have not offered any evidence that
`should disrupt these constructions. However, patent owners
`have argued that several terms should be construed to include
`limitations that are simply not present in the claims. These
`terms are "apoptosis," "therapeutically effective amount,"
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`and "enhancing cell death or apoptosis."
` JUDGE POLLOCK: Ms. Whelan, given that the
`specification at column 5, lines 32 to 38, equates apoptosis,
`programmed cell death, and the killing of cells, whereas the
`prosecution history, at record pages 398 and 400, appears to
`distinguish cell killing from differentiation, why should we
`interpret cell death and apoptosis in the challenged claims as
`encompassing differentiation?
` MS. WHELAN: Well, the definition in the
`specification for both "apoptosis" and "cell killing" refers
`simply to a series of intracellular events that lead to cell
`death.
` JUDGE POLLOCK: Yes.
` MS. WHELAN: And as Dr. Kufe testified in his
`deposition, it doesn't say what that series of events has to
`be or how long that series of events should have to take.
`And, so, when this broad definition is set forth in the
`specification, that's how the claims have to be interpreted.
`And, in fact, the claims don't actually use the word "cell
`killing," but as your Honor pointed out, that is also equated
`to that same definition in the specification.
` JUDGE POLLOCK: Yes. Well, this is a Phillips
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`case. Should we ignore the prosecution history that is
`telling us that differentiation is different from killing?
` MS. WHELAN: Well, no, I don't think the
`prosecution history should be ignored. But the definition in
`the specification is the controlling interpretation, in
`addition to the fact that the word "killing" is not actually
`used in any of the challenged claims at issue, which makes
`that file history less relevant. That --
` JUDGE POLLOCK: So you would not equate "cell
`death" in the claims with killing.
` MS. WHELAN: Well, it's a different term. But
`even to the extent it were equated, the very clear definition
`in the specification that's just a series of intracellular
`events that lead to cell death, that's the definition that
`patent owners have set forth and that's the definition that
`should apply to the extent that that "cell killing" term is
`relevant.
` JUDGE POLLOCK: Okay. I think your position is
`clear. Thank you.
` MS. WHELAN: So, turning to slide 9, we have the
`first disputed term of "apoptosis." And as we just
`discussed, that term is defined in the specification as a
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`series of intracellular events that lead to target cell
`death.
` As shown on slide 10, patent owners expressly
`agreed with that definition in their preliminary response.
` And as shown on slide 11, Dr. Kufe, patent owners'
`declarant and inventor, also agreed with that definition in
`his deposition.
` Yet, patent owners' response suggests that
`apoptosis also requires cell shrinkage and single-stranded
`DNA fragmentation. Patent owners have not pointed to any
`support in the specification or file history for this
`construction. There's no reason for the board to depart from
`the construction in the institution decision.
` The next disputed term is "therapeutically
`effective amount." Petitioners urge the board to maintain
`the construction adopted in the institution decision based on
`the term's plain meaning, which is an amount that would be
`sufficient to have a desired therapeutic effect.
` As shown on slide 12, there does not appear to be
`a dispute about this plain meaning.
` JUDGE POLLOCK: And doesn't the claim suggest that
`that -- that desired effect is to enhance cell death or to
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`enhance apoptosis?
` MS. WHELAN: Well, that's the effect of the
`combination. So, the therapeutically effective amount of the
`tyrosine kinase inhibitor alone, the tyrosine kinase
`inhibitor does not have to cause cell death. But working
`together, the combination enhances cell death or apoptosis.
` JUDGE POLLOCK: Okay.
` MS. WHELAN: As shown on slide 13, the definition
`that the patent owners have referred to in the specification
`is not defining the term "therapeutically effective amount"
`as used in the claims. The claims recite a therapeutically
`effective amount of a single agent, the tyrosine kinase
`inhibitor; and in contrast, the definition patent owners
`refer to in the specification expressly applies only to an
`amount of the DNA-damaging agent and tyrosine kinase
`inhibitor, two agents in combination.
` The term defined in the specification is
`fundamentally different from the term in the claims.
`Therefore, the plain meaning of the claimed therapeutically
`effective amount of a tyrosine kinase inhibitor must control.
` Patent owners also argue in support of their
`construction that the stated aim of the invention is
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`synergistic cancer cell killing effects. Even if this were
`correct, the stated aim of the invention cannot overcome the
`ordinary meaning of the claim terms.
` The '512 patent's disclosure also does not support
`this stated aim because none of the examples in the
`specification demonstrate either cell killing or synergistic
`effects. In fact, the inventors only disclose testing two
`known tyrosine kinase inhibitors, herbimycin A and genistein,
`in combination with a single DNA -- chemotherapeutic DNA-
`damaging agent, mitomycin C.
` The '512 patent has only one example actually
`testing the results of these combinations. And all that
`shows, as seen in figure 4 on slide 14, is in vitro data for
`phosphorylation of a single tyrosine kinase.
` As shown on slide 15, the '512 patent does not
`disclose any results of administering a tyrosine kinase
`inhibitor in combination with a DNA-damaging agent to a human
`or animal. The only treatment method disclosed in the patent
`is in example 5, which is prophetic.
` JUDGE POLLOCK: Ms. Whelan, you have figure 4A of
`the patent on slide 14. Would you walk us through what you
`think that means, please.
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` MS. WHELAN: So, this is an experiment looking at
`phosphorylation, and it's basically the effect on
`phosphorylation of herbimycin in combination with MMC and
`looking at how that may impact phosphorylation. But it
`doesn't show anything about cell killing or synergistic cell
`killing effects.
` JUDGE POLLOCK: And what is the effect on
`phosphorylation? I see p56, p53 Enolase marked, but I'm not
`sure what's being referred to in the bands.
` MS. WHELAN: So, my understanding -- why don't I
`turn -- I believe that's at column 11, 15 to 20, of the
`patent -- or, actually, in column 7, as well. It describes
`figure 4A, B, and C in column 7, starting at line 4.
` So, figure -- it says, "In figure 4A, cells were
`treated with 10-5 M herbimycin A (H) or
`genistein (G) for one hour and then MMC for an additional one
`hour.”
` Then -- so, the reaction is analyzed for
`phosphorylation of the p56, p53 LYN and Enolase. So, I
`believe this is showing that there's no longer
`phosphorylation.
` JUDGE POLLOCK: And then what is our takeaway
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`supposed to be from this figure?
` MS. WHELAN: Well, I mean my understanding is that
`it's showing that these -- there is an effect on
`phosphorylation, but there's not -- there's no demonstration
`of any effect on cell killing.
` JUDGE POLLOCK: In this experiment.
` MS. WHELAN: Excuse me?
` JUDGE POLLOCK: There's no --
` MS. WHELAN: Well, or in the entire patent.
` JUDGE POLLOCK: Okay.
` MS. WHELAN: This is the only data for -- that --
`where the combination of the low molecular weight tyrosine
`kinase inhibitor and DNA-damaging agent was tested, and it
`does not show cell killing or cell death or apoptosis.
` As shown on slide 15, the '512 patent does not
`disclose results of administering a tyrosine kinase inhibitor
`in combination with a DNA-damaging agent to a human or
`animal, and the only treatment method disclosed in the patent
`is example 5, which is prophetic.
` So, despite patent owners' emphasis on synergistic
`cancer cell killing effects, the '512 patent has no data
`whatsoever showing cell killing.
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` A stated aim of the invention in the disclosed
`embodiments do not change the plain meaning of the claimed
`therapeutically effective amount of a tyrosine kinase
`inhibitor.
` Turning to the final disputed claim term, patent
`owners' argument enhancing cell death or apoptosis has an
`immediacy requirement that excludes waiting for
`differentiated cells to die. But there is no such immediacy
`requirement in the enhancing term or anywhere else in the
`claims. Neither the claims nor the specification place any
`limitations on when or how quickly the series of
`intracellular events leading to cell death must occur. As
`shown on slide 16, Inventor Kufe admitted as much at his
`deposition.
` The preliminary determination in the institution
`decision that the claims place no limits on when cell death
`must occur is correct and should be maintained.
` The claims also do not require any particular
`mechanism of action leading to cell death or apoptosis.
`Nothing in the record would justify such a requirement which
`is not stated in the claims and is not disclosed in the
`specification.
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` JUDGE POLLOCK: Ms. Whelan, forgive me, but back
`to slide 15. We're talking about the claim construction.
`What -- what is the link between your claim construction
`position and the fact that example 5 is prophetic? I seem to
`be missing a point.
` MS. WHELAN: So, this is, basically, rebutting the
`patent owners' argument that the therapeutically effective
`amount in the claim must be interpreted that the tyrosine
`kinase inhibitor alone has to kill cells. And as we
`understand the argument, it's that because the stated aim of
`the invention is synergistic cell killing and the argument's
`that all the embodiments in the patent relate to cell
`killing, that that should affect the interpretation of the
`claims.
` So, our point in going through the examples was
`that the patent does not actually show any cell killing. So,
`there's no reason to say, well, we need to read in from the
`spec a requirement for cell killing or any particular type of
`cell killing.
` JUDGE POLLOCK: Thank you.
` MS. WHELAN: Now, moving to slide 17, I'll turn to
`the instituted grounds, starting with ground two, the
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`combination of Honma with Honma 1992 and McGahon in view of
`the knowledge of a person of ordinary skill in the art.
` As shown on slide 18, Honma disclosed the claimed
`combination for use in treating cancer over five years before
`the '512 patent's priority date. There's no dispute that
`Honma discloses many elements of the challenged claims.
` First, there's no dispute that Honma discloses
`administering the combination of herbimycin A with Adriamycin
`to K562 cells, which are human leukemia cells. Herbimycin A
`is a preferred example of a low molecular weight tyrosine
`kinase inhibitor, and Adriamycin is a chemotherapeutic DNA-
`damaging agent disclosed in the '512 patent.
` Second, as shown on slide 19, Honma expressly
`suggests using its disclosed combination to treat leukemia,
`which a person of ordinary skill in the art would have
`understood to mean use and treatment of cancer in animals or
`humans.
` Third, as shown on slide 20, it's also undisputed
`that Honma discloses Adriamycin and herbimycin A act in
`combination by effecting a series of intracellular events to
`alter the cell's response to Adriamycin. This is the
`functional limitation in challenged claim 6 and is clearly
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`shown in figure 5 of Honma.
` On slide 20, the point in the red circle shows the
`number of cells remaining after five days when treated with
`Adriamycin alone. The rest of the points in green show the
`number of cells remaining when treated with the combination.
`Because there are substantially fewer cells remaining after
`treatment with the combination, herbimycin A is altering the
`cell's response to Adriamycin.
` Patent owners have not disputed that Honma
`discloses many other elements of the challenged claim, and
`slide 21 summarizes these.
` Only two claim limitations are in dispute. The
`first is administering a therapeutically effective amount of
`a low molecular weight tyrosine kinase inhibitor to the
`patient, and the only disagreement is whether the amount of
`herbimycin A, the tyrosine kinase inhibitor in Honma, is a
`therapeutically effective amount, as claimed.
` And the second disputed limitation is whether the
`agent and inhibitor act in combination by effecting a series
`of intracellular events to enhance cell death or apoptosis.
` There's no question that Honma discloses the
`combination of the tyrosine kinase inhibitor and
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`chemotherapeutic DNA-damaging agent acting in combination.
`The only dispute is whether they act in combination to
`enhance cell death or apoptosis. And both of these
`disagreements turn on patent owners' improper attempt to read
`into the claims extra limitations that would require a
`particular type of immediate cell killing. As we've already
`discussed, such a requirement simply is not present in the
`claims or even supported by the specification.
` As explained in the petition and Dr. Eastman's
`declaration, Honma discloses the combination of herbimycin A
`and Adriamycin enhances cell death as claimed.
` As shown on slide 22, a person of ordinary skill
`in the art would have understood that Honma demonstrates
`treating K562 cancer cells with a combination of the tyrosine
`kinase inhibitor, herbimycin A, and the DNA-damaging agent,
`Adriamycin, causes those cells to differentiate into mortal
`cells that naturally die.
` JUDGE POLLOCK: And what's the evidence that these
`cells die and don't dedifferentiate?
` MS. WHELAN: So, the benzidine positivity shows
`that the cells are differentiating into at least the
`immediate precursors of red blood cells. And as Dr. Eastman
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`has testified, the benzidine-positive cells will terminally
`differentiate and then live out their days as red blood cells
`and die.
` JUDGE POLLOCK: But doesn't Honma say that
`benzidine-positive cells under some circumstances
`dedifferentiate?
` MS. WHELAN: So, Honma refers to the cell
`population reverting to the benzidine-negative phenotype, but
`that observation is only for cells treated with herbimycin A
`alone. It does not apply to the cells treated with the
`combination.
` JUDGE POLLOCK: And is Honma silent with respect
`to what happens to those cells treated with the combination?
` MS. WHELAN: Well, Honma interprets its own
`results as involving terminal differentiation. And there's,
`additionally, Dr. Eastman's testimony that even the cells
`that -- that where the benzidine-negative phenotype was
`observed again, that that could have just been benzidine-
`negative cells in the population growing more and overcoming
`the --
` JUDGE POLLOCK: Could have been. So, it's
`speculation?
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` MS. WHELAN: Well, that's Dr. Eastman's testimony.
`It's his interpretation as an expert. And, in any event, the
`key point is that Honma does not say that there's any
`reversion of the combination. And Dr. Eastman's testimony
`and then the references cited in petitioners' reply,
`including Dr. Kufe's Luisi-DeLuca reference and the Toffoli
`reference, show that benzidine positivity induced by DNA-
`damaging agents, including Aris C and Adriamycin, is not
`reversible. So, that's further support that there was not
`reversibility for the combination in Honma.
` So, slide 20 -- slide 22 shows figure 4A of Honma,
`which actually demonstrates the amount of benzidine-positive
`cells and cultures treated with various concentrations of
`herbimycin A in the presence and absence of Adriamycin; the
`green data series treated with Adriamycin and the yellow data
`series was not; and in all concentrations of herbimycin A,
`the combination caused more cells to become benzidine
`positive. And Honma summarized this as that herbimycin A and
`the other differentiation inducers, like Adriamycin, have
`additive or more than additive effects on induction of
`benzidine-positive cells.
` And as we just discussed on slide 23, benzidine-
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`positive cells are the immediate precursors to red blood
`cells, and Dr. Kufe stated this also in his declaration.
` JUDGE POLLOCK: Does slide 22, that sentence you
`have partially highlighted, it ends in the unhighlighted part
`in the words "in suboptimal concentrations" -- what's the
`significance of suboptimal concentrations?
` MS. WHELAN: So, I think the -- the implication of
`that here is that Honma is trying to look for additive
`effects between the two drugs and, so, they're using
`suboptimal concentrations so that they can see how the
`combination works together.
` JUDGE POLLOCK: Suboptimal for what?
` MS. WHELAN: I think what it -- my understanding
`is that it means less than the optimal concentration of what
`you would use of the agent on its own in order to see -- to
`not have such a strong effect of the individual agents that
`you can still look for whether there's enhancement caused by
`the combination.
` JUDGE POLLOCK: Thank you.
` MS. WHELAN: So, as supported by Dr. Eastman's
`declaration, the differentiated K562 cells designated by the
`benzidine positivity are mortal and naturally die after a
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`limited lifespan. And Dr. Kufe agreed that red blood cells
`have a lifespan around 28 days, and that the '512 patent
`places no requirement on how fast the claimed series of
`events leading to cell death must occur.
` And just one other comment in response to your
`Honor's question earlier about whether cell killing and
`differentiation -- you know, other arguments about that,
`those two could be different. The petitioners' argument is
`specific to the certain differentiation that's shown in
`Honma, which, as Dr. Eastman testified, shows that these
`particular K562 cells are becoming mortal and will die. So,
`it's a very specific differentiation argument here.
` And as shown on slide 24, the Wintrobe's clinical
`hematology treatise reinforces the interpretation that in the
`context of blood cells as being studied by Honma,
`differentiation is a process that leads to cell death.
` And we've already discussed Honma and that it d
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