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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`____________
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`EDWARDS LIFESCIENCES CORPORATION, EDWARDS LIFESCIENCES
`LLC, AND EDWARDS LIFESCIENCES AG
`Petitioners
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`v .
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`BOSTON SCIENTIFIC SCIMED, INC.
`Patent Owner
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`____________
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`Case IPR2017-00060
`Patent 8,992,608
`____________
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`Before the Honorable NEIL T. POWELL, JAMES A. TARTAL, and ROBERT L.
`KINDER, Administrative Patent Judges.
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`PETITIONERS’ SURREPLY IN OPPOSITION TO PATENT OWNER’S
`MOTION TO EXCLUDE EVIDENCE PURSUANT TO 37 C.F.R. § 42.641
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`1
`This Surreply was authorized by email on December 6, 2017.
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`In its motion to exclude (“MTE,” Pap. 41, 48), PO improperly includes new
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`argument and new evidence: (1) attempting to identify a commissure support
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`element (“CSE”) in Petitioners’ SAPIEN 3 (“S3”) purportedly to show a nexus
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`between the S3 and ’608; (2) attempting to distinguish statements made during
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`’608’s prosecution that undercut its nexus argument; and (3) offering a dictionary
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`definition of “attached” to support an untimely claim construction argument. Use
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`of a motion to exclude as a substantive surreply is procedurally improper and PO’s
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`new arguments and new evidence should be disregarded. Kyocera Corp. v.
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`Softview LLC, IPR2013-7, Pap. 51, 34 (PTAB Mar. 27, 2014) (“A motion to
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`exclude is neither a substantive sur-reply, nor a proper vehicle for arguing whether
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`a reply or supporting evidence is of appropriate scope.”); Marvell Semicond., Inc.
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`v. Int. Vent. I LLC, IPR2014-552, Pap. 65, 2 (PTAB Aug. 13, 2015) (expunging
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`unauthorized supplemental information cloaked as motion to exclude); Trial Pract.
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`Guide, 77 Fed. Reg. 48765, 48767 (Aug. 14, 2012) ((“a reply that raises a new
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`issue or belatedly presents evidence will not be considered and may be returned”).
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`PO’s motion (Pap. 41 at 7) overstepped by adding further explanation to the
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`deficient CSE analysis in PO’s Response, which merely circled three areas on
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`pictures of the S3 with no identification of any components that purportedly
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`embody a CSE. Response (Pap. 21) at 51; Ex. 2080, Appx. B, Elements 1.2-1.3.
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`PO’s MTE Reply (Pap. 48) takes its impropriety further—by adding a figure never
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`1
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`before cited (Pap. 48 at 4 (pasting Ex. 2046 at 28)), identifying components of S3
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`as a CSE that it never before mentioned (“a ‘PET layer,’ ‘tissue integral tabs,’ and
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`sutures” (id. (citing Ex. 2046 at 28))), and then arguing Petitioners ignored this
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`“evidence.” It is untenable that PO could have “clearly” identified elements and
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`figures it never before mentioned or cited. Exhibit 2046 was cited only once by PO
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`for an unrelated issue. Response at 60 (citing Ex. 2046 at 10). PO’s Dr. Brecker
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`never cited Ex. 2046 or mentioned a PET layer, tissue integral tabs, or sutures.
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`Also for the first time, PO attempts to distinguish its arguments and
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`amendments made to obtain the ’608 that require the claimed seal to double over
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`the frame, adding new arguments and figures to suggest the S3’s discrete, two-skirt
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`construction is covered by ’608 even though no S3 skirt doubles over the frame.
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`(Pap. 48 at 2-4). Again, PO’s reply is not the proper vehicle to introduce new
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`arguments and evidence.
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`Finally, for the first time, PO submits a dictionary definition of “attached”
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`(Pap. 48 at 4-5) that is not only unauthorized supplemental information, but also
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`fails to even support PO’s untimely nexus arguments. Nothing in this new
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`definition supports PO’s assertion that the BRI of “attached to” permits treating the
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`integral structure of the S3 frame with a commissure window as artificially
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`separate structures “attached to” one another.
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`Petitioners request that PO’s new arguments and evidence be disregarded.
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`2
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`Dated: December 11, 2017
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`Respectfully submitted,
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`/s/ Gregory S. Cordrey
` Gregory S. Cordrey, Esq. (Reg. No. 44,089)
` Brian P. Egan, Esq. (Reg. No. 54,866)
` Catherine Nyarady, Esq. (Reg. No. 42,042)
` Attorney for Petitioners
`Edwards Lifesciences Corporation,
`Edwards Lifesciences LLC, and
`Edwards Lifesciences AG
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`3
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that on December
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`11, 2017, a complete and entire copy of PETITIONERS’ SURREPLY IN
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`OPPOSITION TO PATENT OWNER’S MOTION TO EXCLUDE
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`EVIDENCE PURSUANT TO 37 C.F.R. § 42.64 has been served in its entirety
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`by e-mail on the following addresses of record for Patent Owner:
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`jennifer.sklenar@apks.com
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`wallace.wu@apks.com
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`marc.cohn@apks.com
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`matthew.wolf@apks.com
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`edward.han@apks.com
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`Dated: December 11, 2017
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` /s/ Gregory S. Cordrey
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`
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`Gregory S. Cordrey, Esq. (Reg. No. 44,089)
`Attorney for Petitioners
`Edwards Lifesciences Corporation,
`Edwards Lifesciences LLC, and
`Edwards Lifesciences AG
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`4
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