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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`
`
`SLAYBACK PHARMA LLC,
`
`Petitioner,
`
`v.
`
`EYE THERAPIES, LLC,
`
`Patent Owner.
`
`__________________
`
`Case IPR2022-00142
`U.S. Patent No. 8,293,742
`__________________
`
`PATENT OWNER’S OBJECTIONS TO PETITIONER’S EXHIBITS
`
`
`
`
`
`
`
`Case IPR2022-00142
`U.S. Patent No. 8,293,742
`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioner hereby submits the following
`
`objections to certain exhibits submitted by Patent Owner. Petitioner’s objections
`
`apply equally to Patent Owner’s reliance on these exhibits in any subsequently
`
`filed documents. Petitioner objects to the following exhibits:
`
`
`
`1047
`
`1048
`
`1049
`
`1059
`
`1070
`
`1071
`
`1072
`
`1073
`
`1074
`
`Description
`
`Declaration of Ivan T. Hofmann in Support of Petitioner’s Reply
`Hofmann Repl
`Declaration of Paul Laskar, Ph.D In Support of Petitioner’s Reply
`
`Declaration of Neal A. Sher, M.D. in Support of Petitioner’s Reply
`Sher Repl
`Srinivasan, S. and Venkiteshwar, M., A Decade of Effective Dry Eye
`Disease Managementwith Systane Ultra (Polyethylene
`Glycol/Propylene Glycol with Hydroxypropyl Guar) Lubricant Eye
`Drops, Clinical Ophthalmology, vol. 15, pp. 2421-2435, June 9, 2021
`Srinivasan 2021
`Bausch Fourth Quarter 2018 Earnings Call Transcript, dated February
`20, 2019, available at https://seekingalpha.com/article/4242568-
`bausch-healthcompanies-inc-bhc-ceo-joseph-papa-on-q4-2018-results-
`earnings-calltranscript
`Bausch Second Quarter 2019 Earnings Call Transcript, dated August 6,
`2019, available at https://seekingalpha.com/article/4282236-bausch-
`healthcompanies-inc-bhc-ceo-joseph-papa-on-q2-2019-results-
`earnings-calltranscript
`Bausch Fourth Quarter 2020 Earnings Call Transcript, dated February
`24, 2021, available at https://seekingalpha.com/article/4408646-
`bausch-healthcompanies-inc-bhc-ceo-joe-papa-on-q4-2020-results-
`earnings-calltranscript
`Bausch Fourth Quarter 2021 Earnings Call Transcript, dated February
`23, 2022, available at https://seekingalpha.com/article/4489552-
`bausch-healthcompanies-inc-bhc-ceo-joseph-papa-on-q4-202 1 -results-
`earnings-calltranscript
`MUSECreative Awards, dated Apr. 11, 2019,
`https://www.hg.agency/news/muse-awards
`
`1
`
`
`
`
`
`Case IPR2022-00142
`U.S. Patent No. 8,293,742
`1075 MUSE Creative Awards, https://museaward.com/
`
`1076 Helen & Gertrude, https://www.hg.agency/
`
`1078
`
`1077
`
`2019 Silver Winner, Lumify® Redness Reliever Drops,
`https://museaward.com/winner-info.php?id=2187
`2019 Rose Gold Winner, Lumify® Redness Reliever Drops,
`https://museaward.com/winner-info.php?id=2186
`1079 Wavemaker US wins two Gold Effie Awards, dated June 3, 2019,
`https://wavemakerglobal.com/usa/news-wavemaker-us-wins-two-
`goldeffie-awards
`1080 Our Work, Wavemaker, https://wavemakerglobal.com/our-work
`
`1083
`
`1081 Ben Adams, Bausch + Lomb kicks off TikTok challenge for Lumify,
`asking consumers to ‘dance with their eyes,’ FiercePharma (July 29,
`2022), https://www.fiercepharma.com/marketing/bausch-lomb-
`kickstarts-tiktokcampaign-lumify-it-asks-consumers-dance-their-eyes
`1082 Bausch + Lomb Launches the #LUMIFYEyeDance Challenge on
`TikTok, PRNewsWire (July 28, 2022),
`https://www.prnewswire.com/newsreleases/ bausch--lomb-launches-
`the-lumifyeyedance-challenge-on-tiktok-301594922.html
`#lumifyeyedance, TikTok,
`https://www.tiktok.com/tag/lumifyeyedance?lang=en
`1085 @Allenface, Tik Tok,
`https://www.tiktok.com/@allanface/video/7129967072628657454?
`is from webapp=v1&item id=7129967072628657454
`1086 @orionsisters, TikTok,
`https://www.tiktok.com/@orionsisters/video/7124396970558459179?
`is_copy_url=1&is_from_webapp=v1&lang=en
`1087 Bausch + Lomb #LUMIFYEyeDance Challenge Wins 2022 Public
`Relations and Marketing Excellence Award for External Campaign of
`the Year from Business Intelligence Group, PRNewsWire (Nov. 1,
`2022), https://www.prnewswire.com/news-releases/bausch--lomb-
`lumifyeyedancechallenge-wins-2022-public-relations-and-marketing-
`excellence-award-forexternal-campaign-of-the-year-from-business-
`intelligence-group-301664009.html
`Pink Eye (Conjunctivitis), Mayo Clinic,
`https://www.mayoclinic.org/diseases-conditions/pink-
`
`1099
`
`
`
`2
`
`
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`Case IPR2022-00142
`U.S. Patent No. 8,293,742
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`eye/symptomscauses/syc-
`20376355#:~:text=Pink%20eye%20(conjunctivitis)%20is%20an,to%20
`appear%20reddish%20or%20pink (last accessed Dec. 14, 2022) (Mayo
`Clinic 2022)
`Subconjunctival hemorrhage - American Academy of Ophthalmology,
`https://www.aao.org/image/subconjunctival-hemorrhage-7
`
`
`Patent Owner objects to Exhibits 1070-1083, 1085-1087, 1099, and 1100 as
`
`1100
`
`lacking authentication under Federal Rules of Evidence (“FRE”) 901 because
`
`sufficient evidence has not been provided to authenticate these exhibits or to
`
`otherwise establish that they are what Petitioner claims them to be.
`
`Patent Owner also objects to Exhibits 1070-1083, 1085-1087, 1099, and
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`1100 under FRE 801, 802, and 805 as containing hearsay and/or hearsay within
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`hearsay. To the extent Petitioner relies on the content of these exhibits for the truth
`
`of the matter asserted, Patent Owner objects to such content as inadmissible
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`hearsay and/or hearsay within hearsay that does not fall under any exceptions.
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`Patent Owner also objects to Exhibits 1059, 1070-1083, 1085-1087, 1099,
`
`and 1100 as irrelevant or, in the alternative, prejudicial, confusing, and a waste of
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`time under FRE 401, 402, and 403. Petitioner does not cite Exhibits 1070-1083,
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`1085-1087, 1099, and 1100 in its Petition or Reply. Thus, the exhibits have
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`minuscule probative value that is substantially outweighed by unfair prejudice,
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`confusion, waste of time, and needless presentation of cumulative evidence. FRE
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`401-403.
`
`Patent Owner objects to Exhibit 1047, paragraphs 33, 36-39, 41-42, 43, 45,
`3
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`Case IPR2022-00142
`U.S. Patent No. 8,293,742
`48 and footnotes 34-49, 51-54, 58, 63-64, Exhibit 1048, paragraph 22 and footnote
`
`1, and Exhibit 1049, paragraphs 101-102 and footnotes 3-4 as containing hearsay
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`and/or hearsay within hearsay under FRE 801, 802, and 805, and irrelevant or, in
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`the alternative, prejudicial, confusing, and a waste of time under FRE 401, 402,
`
`and 403. The opinions stated in these paragraphs and footnotes cite Exhibits 1059,
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`1070-1083, 1085-1087, 1099, and 1100, which are objectionable for the reasons
`
`explained above. Thus, the above-identified paragraphs and footnotes in Exhibits
`
`1047-1049 relying on these exhibits are objectionable for the same reasons.
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`
`
`Date: December 23, 2022
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`Respectfully submitted,
`
`
`
`
`
`
`
`By: /Bryan C. Diner/
`Bryan C. Diner, Reg. No. 32,409
`Justin J. Hasford, Reg. No. 62,180
`Caitlin E. O’Connell, Reg. No. 73,934
`Christina Ji-Hye Yang, Reg. No. 79,103
`
`Finnegan, Henderson, Farabow,
` Garrett & Dunner, LLP
`
`Counsel for the Patent Owner
`
`
`
`4
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`
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`Case IPR2022-00142
`U.S. Patent No. 8,293,742
`CERTIFICATE OF SERVICE
`The undersigned hereby certifies that a copy of the foregoing Patent Owner’s
`
`Objections to Petitioner’s Exhibits was served electronically via email on
`
`December 23, 2022 to counsel of record for the Petitioner at the following:
`
`Linnea P. Cipriano
`Goodwin Proctor LLP
`620 Eight Avenue
`New York, NY 10018
`lcipriano@goodwinlaw.com
`
`Louis H. Weinstein
`Patrick G. Pollard
`Windels Marx Lane & Mittendorf, LLC
`1 Giralda Farms
`Madison, NJ 07940
`lweinstein@windelsmarx.com
`ppollard@windelsmarx.com
`
`Robert Frederickson III
`Goodwin Proctor LLP
`100 Northern Avenue
`Boston, MA 02210
`rfrederickson@goodwinlaw.com
`
`The Petitioner has consented to service by electronic mail.
`
`Date: December 23, 2022
`
`
`
`
`
`
`
`By: /Geneva Eaddy/
`Geneva Eaddy
`Case Manager
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`
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