crispr patent interference may 6 conf call transcript

7/26/2019 CRISPR Patent Interference May 6 Conf Call Transcript

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Filed on behalf of Senior Party

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,UNIVERSITY OF VIENNA, AND EMMANUELLE CHARPENTIER

By: Todd R. Walters, Esq.

Erin M. Dunston, Esq.Travis W. Bliss, Ph.D., Esq.

BUCHANAN INGERSOLL &ROONEY PC

1737 King Street, Suite 500Alexandria, Virginia 22314-2727

Telephone (703) 836-6620

Facsimile (703) [email protected]

[email protected]

[email protected]

By: Li-Hsien Rin-Laures, M.D., Esq.

Sandip H. Patel, Esq.Greta Noland

MARSHALL GERSTEIN &BORUN LLP

6300 Willis Tower233 South Wacker Drive

Chicago, Illinois 60606

Telephone (312) 474-6300Facsimile (312) 474-0448

[email protected]

[email protected]

[email protected]

UNITED STATES PATENT AND TRADEMARK OFFICE

____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD

____________________

THE BROAD INSTITUTE, INC., MASSACHUSETTS INSTITUTE OFTECHNOLOGY, and PRESIDENT AND FELLOWS OF HARVARD COLLEGE

Patents 8,697,359; 8,771,945; 8,795,965; 8,865,406; 8,871,445; 8,889,356;8,895,308; 8,906,616; 8,932,814; 8,945,839; 8,993,233; 8,999,641; and Application 14/704,551,

Junior Party,

v.

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, UNIVERSITY

OF VIENNA, AND EMMANUELLE CHARPENTIER,Application 13/842,859,

Senior Party.

____________________

Patent Interference 106,048 (DK)

____________________

SUBMISSION OF TRANSCRIPT


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Interference No. 106,048

1

Senior Party submits herewith a copy of the transcript of the telephone conference held1

on May 6, 2016 with an errata sheet to correct typographical errors.2

Respectfully submitted,3

Date: May 9, 2016 By: /Todd R. Walters/4

Todd R. Walters, Esq.5

Registration No. 34,0406

BUCHANAN INGERSOLL &ROONEY PC71737 King Street, Suite 5008

Alexandria, VA 223149

Telephone (703) 836-662010Facsimile (703) 836-202111

[email protected]

Counsel for UC and Vienna13

Date: May 9, 2016 By: /Li-Hsien Rin-Laures/14

Li-Hsien Rin-Laures, M.D., Esq.15

Registration No. 33,54716MARSHALL GERSTEIN &BORUN LLP17

6300 Willis Tower18

233 South Wacker Drive19Chicago, Illinois 6060620

Telephone (312) 474-630021

Facsimile (312) 474-044822

[email protected] for EC24

25


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CERTIFICATE OF FILING AND SERVICE

I hereby certify that on this 9th day of May, 2016, the foregoing SUBMISSION OF

TRANSCRIPTis being filed, via the Interference Web Portal, by 5:00 PM Eastern Time.

Pursuant to agreement by the parties, service copies are being sent, via electronic mail by 8:00

PM Eastern Time today, to Junior Partys counsel as follows:

Steven R. Trybus, Esq.

Harry J. Roper, Esq.

JENNER &BLOCK LLP353 North Clark Street

Chicago, Illinois 60654

(312) [email protected]

[email protected]

Date: May 9, 2016 /Todd R. Walters/

Todd R. Walters, Esq.Registration No. 34,040

BUCHANAN INGERSOLL &ROONEY PC

1737 King Street, Suite 500Alexandria, VA 22314

Telephone (703) 836-6620

Facsimile (703) [email protected]

Counsel for UC and Vienna


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Transcript of Conference Call

Date:May 6, 2016

Case: The Broad Institute, Inc. -v- The Regents of the University ofCalifornia (PTAB)

Planet Depos, LLCPhone: 888-433-3767

Fax: 888-503-3767Email: [email protected]

Internet: www.planetdepos.com

Worldwide Court Reporting | Interpretation | Trial Services


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1

1 UNITED STATES PATENT AND TRADEMARK OFFICE

2 ________________________

3 BEFORE THE PATENT TRIAL AND APPEAL BOARD

4 ________________________

5 THE BROAD INSTITUTE, INC., MASSACHUSETTS INSTITUTE OF

TECHNOLOGY, and PRESIDENT AND FELLOWS OF HARVARD COLLEGE

6 Patents 8,697,359; 8,771,945; 8,795,965; 8,865,406;

8,871,445; 8,889,356; 8,895,308; 8,906,616; 8,932,814;

7 8,945,839; 8,993,233; 8,999,641; and Application

14/704,551,

8

9 Junior Party,

10 v.

11 THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, UNIVERSITY

OF VIENNA, AND EMMANUELLE CHARPENTIER,

12 Application 13/842,859,

13 Senior Party.

14 ________________________

15 Patent Interference 106,048 (DK)

16 ________________________

17

18 PHONE CONFERENCE

19 May 6, 2016

20 Commencing at 9:33 a.m.

21

22 REPORTED BY: CAITLIN J. ALBRECHT


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Conference Call

Conducted on May 6, 2016

888.433.3767 | WWW.PLANETDEPOS.COM

PLANET DEPOS

2

1 Phone conference between the Honorable

2 Deborah Katz and the Honorable Richard Schafer and

3 counsel for the Junior Party and counsel for the Senior

4 Party regarding Patent Interference 106,048, on May 6,

5 2016, commencing at 9:33 a.m., before Caitlin J.

6 Albrecht, Notary Public of and for the State of

7 Minnesota.

8

9 **********

10 APPEARANCES

11

12 On Behalf of the Junior Party:

13

14 Steven R. Trybus, Esq.

15 [email protected]

16 Paul D. Margolis, Esq.


18 JENNER & BLOCK LLP

19 353 North Clark Street

20 Chicago, Illinois 60654

21 312-222-9350

22 (APPEARANCES continued on next page)


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3

1 APPEARANCES (Continued)

2

3 On Behalf of the Senior Party:

4

5 Todd R. Walters, Esq.

6 [email protected]

7 Travis W. Bliss, Ph.D.

8 [email protected]

9 Erin M. Dunston, Esq.


11 BUCHANAN INGERSOLL & ROONEY PC

12 1737 King Street

13 Suite 500

14 Alexandria, Virginia 22314

15 703-836-6620

16

17

18

19

20

21

22 (APPEARANCES continued on next page)


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1 APPEARANCES (Continued)

2

3 Li-Hsien (Lily) Rin-Laures, M.D.

4 [email protected]

5 Sandip H. Patel, Esq.

6 [email protected]

7 MARSHALL GERSTEIN AND BORUN LLP

8 233 South Wacker Drive

9 6300 Willis Tower

10 Chicago, Illinois 60606

11 312-474-6300

12

13

14

15

16

17

18

19 NOTE: The original transcript will be filed

20 with Buchanan Ingersoll & Rooney PC, pursuant to the

21 applicable Rules of Civil Procedure.

22


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1 (Proceedings commenced at 9:33 a.m.)

2 JUDGE KATZ: All right. I think the

3 parties, they look like -- first of all, actually I

4 have to apologize that this conference call was

5 scheduled so late. I wasn't aware of it until

6 yesterday, so my apologies for that.

7 I think the -- it seems like the parties

8 requested the call, and the first thing that we wanted

9 to talk about was page limit. So who would like to

10 discuss that? Is that -- Mr. Walters and Mr. Trybus,

11 have you two discussed page limits with each other?

12 MR. TRYBUS: Yes, Your Honor. This is

13 Steve Trybus. And we have had a discussion with regard

14 to that. If I might, some of the discussion on that

15 might be a little bit more extended.

16 I wanted to raise one of the other issues that

17 we referenced in the e-mail first, because I think it

18 can be dealt with rather quickly, and then we can move

19 on to the page limit issue. And that is specifically

20 the question with regard to exhibits. And I've

21 discussed this with counsel for senior party, and I

22 guess there are two or three separate pieces to that.


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1 First of all, we wondered whether Your Honors

2 would contemplate waiving the requirement of Standing

3 Order 154.2.1, that the exhibits have consecutive

4 exhibit numbers. I know that it is common to -- over

5 the -- that rule applies here in the interference, as I

6 know it. The AAA trial side of the board proceedings,

7 it's more often on -- consecutive numbers are not

8 applied.

9 And the request was really for the ability,

10 then, for the parties to sort of group their exhibits,

11 if you will, putting, perhaps, patents together in one

12 area, declarations in another area, and giving them

13 sort of unique numbers such that, you know, the 2000

14 series for us, perhaps, would be patents, and we would

15 do declarations in 2100, and articles as -- starting

16 with 2200.

17 If that is contrary to the rules -- and we can

18 certainly, you know, do all our exhibits consecutive

19 numbering, but we thought it might be helpful both to

20 the parties and the Board to have nonconsecutive

21 numbering where we have that sort of more staged

22 presentation of the exhibit numbers.


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1 JUDGE KATZ: Okay. Mr. Walters, you

2 discussed that? That's fine with you?

3 MR. WALTERS: Yeah, we don't have any

4 objection to skipping some numbers in the exhibit

5 numbering.

6 JUDGE KATZ: Okay. I mean, we would appreciate

7 anything that makes the record easier to understand and

8 more organized. We appreciate it. So in that sense,

9 having to have consecutive numbering, we'd waive that.

10 MR. TRYBUS: Okay. Thank you, Your Honor.

11 The next piece for that goes a bit along with

12 that, and I guess I should say I don't think

13 necessarily the -- Your Honors need to know, but we

14 have agreed between ourselves with regard to a process

15 for service that comports with the rules of the Board.

16 We were also -- wanted to raise -- and

17 Mr. Walters had no objection to this, although this

18 was, I will say, my idea -- the question of whether it

19 might be possible in this interference. We have,

20 because of the number of patents and -- 12 patents and

21 one application on our side, the -- and the fact that

22 all of those are rather voluminous themselves, the


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1 number of exhibits are perhaps larger than is usual in

2 these cases, and there are a number of these exhibits

3 that are also larger than usual.

4 So we wanted to ask the question of whether it

5 would be possible that in -- when we file the motions,

6 that we use the portal to file the, on our side four

7 motions, on Mr. Walters' side, his two motions. And

8 the accompanying materials, exhibits, declarations, et

9 cetera, be provided -- rather than filing via the

10 portal, be provided on either a USB drive or a disc,

11 whatever would be appropriate, rather than having the

12 time to -- needing to take the time and the problems

13 that occur sometimes with filing via the portal the

14 large exhibits.

15 I understand that that, you know, may or may

16 not comport with the way that the Board works. But I

17 offer that up as something that would perhaps make it

18 easier to have everything in one place. But if that

19 isn't what the Board would prefer, we're perfectly

20 willing to go ahead and file everything via the portal

21 as well.

22 JUDGE KATZ: Okay. I think it would be


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1 fine. If it does make it easier, again, I think that

2 would be fine. The only concern I would have is that

3 eventually everything does have to be on the portal,

4 and if some of the exhibits are over 25 megabytes, that

5 there may be trouble getting them on anyway. So that

6 may be something that the administrative staff has to

7 work with you.

8 MR. TRYBUS: Okay. And so, Your Honor, if

9 I understand that, we'll take that proposal and then

10 we'll work with the administrative staff and make sure

11 everything gets up on the portal eventually, including

12 those exhibits. And there will be some, I'm certain,

13 that will be over 25 megabytes.

14 JUDGE KATZ: Yeah, that would be -- that

15 would be good if you can, you know, put them up or

16 something. But if you work with them, they know more

17 about that than we do.

18 MR. TRYBUS: Okay, thank you very much.

19 JUDGE KATZ: Okay.

20 MR. TRYBUS: I'm then prepared to move on

21 to page limits. Todd, is that appropriate from your

22 point of view at this point?


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1 MR. WALTERS: Yes, absolutely.

2 MR. TRYBUS: Okay. So, Your Honors, for

3 the party Broad, my request for the extra page limits

4 would be as follows, and we have discussed these, also,

5 with the other side: With regard to the Motion 3 that

6 was authorized for benefit, we believe we need 10 extra

7 pages for a total of 35 pages on that motion. We

8 believe that we will be able to address the benefit

9 issues within that. We have worked hard to try to

10 reduce as much as possible the extraneous materials

11 with regard to that, and believe that we can fit within

12 that for Motion 3 on benefits.

13 For our Motions 4, with -- on written

14 description and Motion 5 with regard to designating

15 materials as not corresponding to Count 1, we're

16 working hard to try to fit those within 25 pages, but

17 at the moment, it doesn't look like we're quite there.

18 We would ask just for three or four extra pages

19 on those motions for -- and I guess I would say that --

20 I might as well say 4 to get to 29 pages on each of

21 those Motions 4 and 5.

22 With regard to Motion 2, no


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1 interference-in-fact, generally we believe, again, that

2 we will just need a few extra pages, like four extra

3 pages, to be able to address no interference-in-fact.

4 With -- respectfully asking the Board for

5 clarification, really, on one issue with regard to

6 that, and that issue is as follows: I understand that

7 both by rule and by practice with regard to the no

8 interference-in-fact motions, oftentimes there are

9 submitted charts that might or might not count in page

10 limit, but also the charts themselves, charting the

11 claims of the one party against the claims of the other

12 party.

13 As Your Honors know, we have on our side almost

14 400 claims in play, and on the other side, 60 claims in

15 play. And as Your Honors may or may not remember from

16 our list of motions, we're really, in the no

17 interference-in-fact, raising just one limitation,

18 which is that all of the claims on our side are limited

19 to -- have a eukaryotic limitation in them, and none of

20 the claims on the other side does. I don't actually

21 even think that it's contested, but that difference

22 between the claims exists. So I know there will be a


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1 substantive resistance to the result of whether the --

2 what that claim difference means.

3 But given the number of claims and given that

4 we're only raising one difference on our no

5 interference-in-fact motion, as we started to put the

6 claim structure together, and as Your Honors may have

7 seen when we just filed our plea claims, just listing

8 our claims takes 72 pages.

9 So rather than go through hundreds, we wanted

10 to request a bit of -- we thought, I guess, that it

11 would be appropriate in this case to really just show

12 our argument affects what this difference is, show the

13 difference with a representative claim. But we didn't

14 think that there were really needed, for the other side

15 or for the Board, listing of claim after claim after

16 claim where the only thing that's going to be

17 highlighted as a difference is the terminology,

18 eukaryotic.

19 So if we do not have to file those charts or if

20 those charts -- or Your Honors want the charts filed

21 but they don't count against the page limit, we could

22 do it in 28 pages with an extension of three or 29 with


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1 an extension of four. Otherwise, we need several

2 hundred pages for those listings.

3 JUDGE KATZ: Okay. That makes sense.

4 Mr. Walters, do you have anything to say about that?

5 MR. WALTERS: We do not have any objection

6 to the request of the additional pages for any of the

7 motions that junior party is requesting.

8 As to the last issue, we don't want to agree

9 that, substantively, that they will have addressed

10 everything. But in principle, what Mr. Trybus is

11 saying seems agreeable to the senior party.

12 JUDGE KATZ: Okay. All right. I think,

13 then, for just procedural reasons, it stays -- so I

14 guess you could ask for 35 pages for those benefit

15 motions, Mr. Trybus; is that right?

16 MR. TRYBUS: Correct, Your Honor.

17 JUDGE KATZ: Okay. And that seems

18 reasonable. We can -- I'll put that in an order.

19 And then just to round things off, it looks

20 like 30 page for the no interference-in-fact and 30

21 pages for the description?

22 MR. TRYBUS: Yes. And also for Motion 5,


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1 the de-designation.

2 JUDGE KATZ: Right. Okay. That makes

3 sense.

4 And I think does -- so any requirement -- I

5 think the claim charts that you can provide that will

6 be helpful are good, and if they become excessive and

7 are not helpful, then you don't need to provide them.

8 And they also don't count towards the page limit.

9 MR. TRYBUS: All right. Thank you very

10 much, Your Honor.

11 JUDGE KATZ: Okay. All right. Then I

12 think there was one last issue, procedural issue about

13 the motion to substitute a count from the senior party.

14 MR. WALTERS: Actually, Your Honor, senior

15 party also wants to talk about page limits for its two

16 motions, and a procedural issue with regard to its

17 motion to substitute a count.

18 JUDGE KATZ: Okay.

19 MR. WALTERS: So I'll start with senior

20 party's benefit motion. And, Your Honor, in senior

21 party's benefit motion, according to the order

22 authorizing motion, senior party was authorized to


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1 address benefit with respect to the current count,

2 Count 1, as well as the counts that it would be

3 proposing in the motion to substitute a count.

4 So we are addressing in that motion three

5 counts and three provisional applications. And as a

6 result of that, the number of pages that senior party

7 is requesting is a bit more than what is being

8 requested by the junior party, who's addressing one

9 count and four provisional applications. Currently, we

10 have whittled down the argument section of the motion

11 to 50 pages, and that does not include our statements

12 of facts. Viewing the statement of facts as providing

13 simple statements with a citation, double-spaced, in

14 earlier drafts, the statement of facts was as long as

15 the argument. So we are asking for a hundred pages for

16 that motion because we're dealing with three counts and

17 three provisional applications.

18 JUDGE KATZ: Okay. You've worked to get

19 the argument section down to --

20 MR. WALTERS: Yeah, we've really

21 streamlined, particularly where there were common

22 disclosures in the respective applications down, but if


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1 you go element by element of each count and show where

2 it's described in the respective applications, it just

3 -- it eats up pages very quickly.

4 JUDGE KATZ: I think the application that

5 you're asking for benefits, these are not the same

6 specification. I can't remember. I think there are

7 continuations, but they're not -- they are

8 continuation-in-part.

9 MR. WALTERS: They are all provisional

10 applications with different disclosures, Your Honor.

11 JUDGE KATZ: So you're arguing for each

12 one of the provisional applications?

13 MR. WALTERS: Correct. Three of four

14 provisionals.

15 JUDGE KATZ: Okay. All right. And you

16 think that the statement of material facts will be

17 equal to the length of the argument?

18 MR. WALTERS: Yeah. The problem is if you

19 go element by element for each of the provisional

20 applications, to put the fact in in a simple sentence,

21 it just eats up pages very quickly.

22 JUDGE KATZ: Okay. All right. I think


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1 we'll take that under advisement. All right? And I'll

2 put that out in an order.

3 All right. Mr. Trybus, did you have any

4 comment?

5 MR. TRYBUS: Your Honor, we believe that,

6 you know, it's a rather large number of pages, but we

7 leave it to Your Honors to determine whether that's

8 reasonable or not. I think to the extent that I have a

9 comment, I just --- I think it's more a substantive

10 issue that we may ultimately differ with senior party

11 with regard to the fact, of course, that the order

12 authorizing motions did allow for two counts, if both

13 were necessary. I'm not sure that we're going to agree

14 that that's the case, so it may be that we think that

15 they should not have been proposing two additional

16 counts. But it is more, I think, a substantive issue.

17 We leave it to your Your Honors to determine

18 the propriety of the number of pages, given

19 Mr. Walters' statements.

20 JUDGE KATZ: Okay. All right,

21 Mr. Walters, I think you should talk about this

22 procedural issue that you had about the substituting a


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1 count.

2 MR. WALTERS: Well, and that goes hand in

3 hand with page limits on the motion to substitute the

4 count. In the standing order, the section dealing with

5 a motion to substitute the count says that you need to

6 address whether you're entitled to benefit with respect

7 to the count that you're proposing. Here we are

8 proposing two counts.

9 We are assuming, but want to confirm with you,

10 Your Honor, that since we're permitted to address the

11 benefit issue in the benefit motion, that we do not

12 have to separately address the benefit issue for the

13 counts that we're proposing being substituted for the

14 current count.

15 JUDGE KATZ: Okay. And those are two

16 separately tangible counts; is that right?

17 MR. WALTERS: Correct.

18 JUDGE KATZ: Okay. All right. And that

19 makes sense. And that clarifies a bit more the request

20 of the page limits, then. It's for -- that you want

21 more pages in the benefit motion so that you wouldn't

22 have to repeat everything in the motion to substitute


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1 the count?

2 MR. WALTERS: Correct, Your Honor, that

3 addresses that. But we still want to talk about page

4 limits for the motion to substitute the count.

5 JUDGE KATZ: Okay, go ahead.

6 MR. WALTERS: So with regard to the motion

7 to substitute the count, we have to propose in that

8 motion the counts. One of the counts that we are

9 proposing is a count that is generic as to environment

10 and generic as to the guide RNA, meaning it covers both

11 the dual guide and the single guide embodiments. Yet

12 we do not have a claim in our application in the

13 interference that would appropriately, in our mind, be

14 designated to correspond to that claim. I'm sorry, to

15 that count.

16 So we are going to be proposing a claim. We

17 also have to do a proffer of truths to explain why a

18 broader count is appropriate, which we are going to do.

19 We are also going to address the patentability of the

20 counts and the claim that we are offering for the

21 counts and the claim. We're going to address the prior

22 arb. We're also going to, for the claim, address 112


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1 issues. We're also going to address 135(b).

2 We also have, for this motion, to address why

3 the existing count is not appropriate, and we have to

4 address claim correspondence of the respective parties'

5 claims that are in the interference. Again, currently

6 streamlining as much as we could in this, and not even

7 including the benefit issues addressing all of the

8 prior -- or all of the proffer -- all of these things I

9 just mentioned, we are at 70 pages of argument. And we

10 think that we could address the statements of fact in

11 about 50 pages. So we would be asking for a total of

12 about 120 pages for that motion.

13 JUDGE KATZ: Okay. I'm not sure, were you

14 -- was there an authorization for motions to add a

15 claim or motion to address 135, or?

16 MR. WALTERS: Well, that is all part of

17 the requirements of a motion to substitute a count,

18 Your Honor, in the standing order. So we're just

19 addressing everything that we would need to address.

20 JUDGE SCHAFER: Mr. Walters, why would we

21 even consider putting in a claim that you didn't --

22 that was never put before the examiner?


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1 MR. WALTERS: Well, Your Honor, we are

2 late in -- I'm sorry, not late. We are not as far

3 along in prosecution as Broad in their prosecution, and

4 the claims that we had allowed at the time that the

5 interference was requested were our single guide

6 claims. We originally, in the request for

7 interference, suggested an interference that was

8 limited to the commonly patentable subject matter found

9 by the patent office at that time.

10 However, the interference was declared in a way

11 that we did not expect, because it's limited to a count

12 that is -- that has a eukaryote environment limitation.

13 If it was believed that that limitation made the claims

14 separately patentable, then there should have been no

15 interference declared. But if it does not make the

16 claim separately patentable, then the count should not

17 be limited to that environment.

18 We think it's -- either this interference

19 should be limited to the common patentable subject

20 matter of the parties, but not put senior party at a

21 disadvantage by not allowing it to rely on its earliest

22 truths just because of the claims that it got allowed


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1 during prosecution.

2 JUDGE SCHAFER: Well, that seems to have

3 been in your control during the prosecution. The

4 claims that you have were the claims that you asked the

5 examiner to look at, and that's what we have before us.

6 MR. WALTERS: We certainly asked the

7 examiner to examine the single guide claims, Your

8 Honor, and those claims were found patentable. At no

9 point in time did we ever indicate to the examiner that

10 those were the only claims that we would request

11 examination on. In fact, the examiner knew that we

12 intended to pursue other claims. We even received a

13 restriction requirement during prosecution that

14 indicated that the single guide invention was

15 separately patentable.

16 JUDGE KATZ: So you have other

17 applications that you could file?

18 MR. WALTERS: Yeah. In fact, we have a

19 parallel set of claims that are directed to the single

20 guide -- I'm sorry. That are directed to a generic

21 environment and a generic RNA, meaning it covers both

22 the dual guide and the single guide RNA. It is in our


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1 Application 14/685,502. And that parallel set of

2 claims to the claims in the interference, the involved

3 claims, we believe it would be appropriate to bring

4 that application into the interference as part of the

5 motion to substitute the count, directed to the more

6 generic count that we're proposing in our motion to

7 substitute the count.

8 JUDGE KATZ: Okay.

9 MR. WALTERS: And we would request that we

10 be able to do that.

11 JUDGE KATZ: Well, if you -- have you

12 requested a motion for all this?

13 MR. WALTERS: We would like to do it as

14 part of the motion to substitute the count, Your Honor.

15 JUDGE KATZ: Well, then there hasn't been

16 any authorization for a motion.

17 MR. WALTERS: And that's what we're asking

18 for right now.

19 JUDGE KATZ: Oh, well, that -- you haven't

20 provided -- that's not what the conference call was

21 about, was -- the motion period's already going.

22 MR. WALTERS: We understand that, Your


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1 Honor, and -- but no motions have yet been filed.

2 JUDGE KATZ: Okay.

3 MR. WALTERS: And in the standing order,

4 it indicates that you can propose a claim that would

5 correspond to a count. In here, we're suggesting that

6 that claim should come from the 14/685,502 application

7 because the claims in that case are generally parallel

8 to the more generic count that we're proposing in our

9 motion to substitute the count.

10 JUDGE KATZ: Okay. Mr. Trybus, do you

11 want to comment?

12 MR. TRYBUS: Yes, Your Honor. So we

13 believe that this is an improper attempt by the senior

14 party to get around the rules here. The idea of adding

15 this claim was briefly set forth with regard to the

16 Motion 5 that they had requested and requested

17 reconsideration on, and have been told that they have

18 not raised this issue.

19 In addition, we have had conversations with

20 senior party where we have asked for access to the

21 claims he's talking about. We believe they should have

22 been -- to the extent this was going to be proposed,


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1 that it needed to be proposed in the list of motions.

2 And that at that time we should have been given access

3 to the 14/685,502 claims. We do not have those. They

4 are not available publicly. So we have no idea what is

5 -- with regard to there.

6 We think these are issues that should have been

7 raised long ago, and that they have -- they now are

8 trying to improperly raise these issues. I think this

9 is part and parcel of an idea that was set forth to

10 some degree, that they were going to try to move with

11 regard to one or both of these counts. They have all

12 of their current claims de-designated, and they

13 requested these claims to be in this interference. If

14 they believe now that these claims and those claims do

15 not interfere, then I think perhaps the resolution

16 should be that they do not oppose our no

17 interference-in-fact motion and have this interference

18 be decided that way. And additional applications with

19 additional claims can be addressed in something else.

20 I think it's an improper attempt for the senior

21 party to, at this late date, bring things in that are

22 not properly part of what they asked for and what Your


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26

1 Honors authorized with regard to these motions, and we

2 strenuously object to this idea of bringing in

3 additional claims. And to the extent that they're also

4 going to ask for it to start de-designating some of

5 their claims from the count which they asked for -- and

6 it was in their Motion 5, and it was a motion that was

7 not authorized.

8 MR. WALTERS: Your Honor, may I respond to

9 that?

10 JUDGE KATZ: Yeah, I have one question,

11 Mr. Walters. Do you -- I know you haven't seen a

12 motion yet, but do you plan to oppose on the motion for

13 no inter fact [phonetic] by junior party?

14 MR. WALTERS: Do we plan to oppose that

15 motion? Yes, Your Honor.

16 JUDGE KATZ: Okay. All right. Go ahead,

17 then. What were you going to --

18 MR. WALTERS: I just want to point out in

19 senior party's list of proposed motions on page 11,

20 where we had requested contingently to file a motion to

21 substitute Count 1 with proposed Count 3 at that time,

22 at the end of that request, the end of the paragraph,


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27

1 we stated that senior party intends to request the

2 addition of a claim that would correspond to proposed

3 Count 3. We specifically contemplated that in our

4 motions list.

5 As to providing junior party with a copy of the

6 claims of our Application 14/685,502, we did offer to

7 provide opposing counsel a copy of those claims, but it

8 was for the limited purpose of them deciding whether

9 they would oppose our request to pull those claims into

10 this interference. They declined to accept the claims

11 on that condition, and we didn't want them to use the

12 claims for other purposes at this point in time. But

13 we're still happy to provide those claims to opposing

14 counsel, and they certainly would get the claims as

15 part of our motion to substitute the count.

16 So we did raise it in our motions list, and we

17 did offer the claims up.

18 JUDGE KATZ: Okay. And what is the status

19 of the application, this 502 application that you

20 offered?

21 MR. WALTERS: It is waiting for

22 examination from the examiner. I don't believe that


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28

1 the examiner has backed it on those claims.

2 JUDGE KATZ: Okay. Okay. I think some

3 issues have been raised. I think we should take them

4 under -- and we will put out an order.

5 So is that -- is that everything that everybody

6 wants to discuss?

7 MR. WALTERS: Your Honor, just one real

8 quick question for senior party. We, of course, are up

9 against a deadline for filing motions, and I wanted to

10 get a sense of when you thought you might get an order

11 out so we had guidance on how we could finalize our

12 motions.

13 JUDGE KATZ: We will try to do that as

14 quickly as possible.

15 MR. WALTERS: Okay.

16 JUDGE KATZ: All right?

17 MR. TRYBUS: Thank you, Your Honor. This

18 is Steve Trybus on behalf of junior party. We have

19 nothing else.

20 JUDGE KATZ: Okay. Thank you, everybody.

21 That's --

22 MR. TRYBUS: Thank you very much.


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1 JUDGE KATZ: -- the record.

2 (Discussion held off the record.)

3 (Proceedings were concluded at 10:05 a.m.

4 on Friday, May 6, 2016.)

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

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22


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1 REPORTER'S CERTIFICATE

2

3

4 I, Caitlin J. Albrecht, Notary Public of and

5 for the State of Minnesota, do hereby certify that the

6 foregoing pages of typewritten material constitutes an

7 accurate verbatim stenographic record taken by me of

8 the telephone conference aforementioned on the 6th day

9 of May, 2016, at the times and place specified.

10

11

12 DATED: May 6, 2016.

13

14

15 _________________________________

16 Caitlin J. Albrecht

17

18

19

20

21

22


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A

AAA

6:6ability

6:9able10:8 11:3 23:10

about

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10:1

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27:10access

24:20 25:2accompanying

8:8according

14:21accurate

30:7

actually

5:3 11:20 14:14add

20:14

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addition

24:19 27:2additional

13:6 17:15 25:18,1926:3

address

10:8 11:3 15:1 18:6,1018:12 19:19,21,2220:1,2,4,10,15,19

addressed13:9 25:19

addresses

19:3addressing

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administrative

9:6,10

advisement

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12:12aforementioned

30:8after

12:15,15

again

9:1 11:1 20:5against

11:11 12:21 28:9ago

25:7

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13:8 17:13

agreeable13:11

agreed

7:14ahead

8:20 19:5 26:16Albrecht

1:22 2:6 30:4,16

Alexandria

3:14all

5:2,3 6:1,18 7:22 11:1813:12 14:9,11 16:9,1516:22 17:1,3,20 18:1820:7,8,8,16 23:1225:11 26:16 28:16allow

17:12

allowed

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almost11:13

along

7:11 21:3already

23:21also

7:16 8:3 10:4 11:1013:22 14:8,15 19:17

19:19,22 20:1,2 26:3although

7:17

another

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any7:3 13:5,6 14:4 17:3

23:16

anything

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9:5apologies

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apologize

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APPEAL1:3

APPEARANCES

2:10,22 3:1,22 4:1applicable

4:21application

1:7,12 7:21 16:4 19:1223:1,4 24:6 27:6,1927:19applications

15:5,9,17,22 16:2,1016:12,20 22:17 25:18

applied

6:8applies

6:5appreciate

7:6,8

appropriate

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appropriately19:13

arb

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6:12,12arguing

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argument

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24:14articles

6:15asked

22:4,6 24:20 25:2226:5asking

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attempt

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authorization20:14 23:16

authorized

10:6 14:22 26:1,7authorizing

14:22 17:12available

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aware

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B

backed

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because

5:17 7:20 15:16 21:1121:22 24:7become

14:6

been

17:15 21:14 22:3 23:1524:1,17,22 25:2,628:3before

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believe

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21:13benefit

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10:12 16:5between

2:1 7:14 11:22

bit

5:15 7:11 12:10 15:7

18:19Bliss

3:7

BLOCK

2:18board

1:3 6:6,20 7:15 8:16,1911:4 12:15

BORUN

4:7both

6:19 11:7 17:12 19:1022:21 25:11

briefly

24:15bring

23:3 25:21bringing

26:2

Broad

1:5 10:3 21:3broader

19:18Buchanan

3:11 4:20

C

Caitlin

1:22 2:5 30:4,16CALIFORNIA

1:11

call

5:4,8 23:20case

12:11 17:14 24:7cases

8:2certain

9:12

certainly

6:18 22:6 27:14CERTIFICATE

30:1certify

30:5

cetera

8:9

CHARPENTIER1:11

charting

11:10charts

11:9,10 12:19,20,2014:5Chicago

2:20 4:10citation

15:13

Civil4:21

claim

12:2,6,13,15,15,1614:5 19:12,14,16,2019:21,22 20:4,15,2121:16 24:4,6,15 27:2

claims

11:11,11,14,14,18,2011:22 12:3,7,8 20:521:4,6,13,22 22:4,4,7

22:8,10,12,19 23:2,223:3 24:7,21 25:3,1225:13,14,14,19 26:3,527:6,7,9,10,12,13,1427:17 28:1clarification

11:5

clarifies

18:19

Clark

2:19COLLEGE

1:5come

24:6commenced

5:1

commencing

1:20 2:5comment

17:4,9 24:11common

6:4 15:21 21:19

commonly

21:8

comport8:16

comports

7:15concern

9:2concluded

29:3

condition

27:11conference

1:18 2:1 5:4 23:20 30:8confirm

18:9

consecutive

6:3,7,18 7:9consider

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constitutes

30:6contemplate

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contemplated27:3

contested

11:21contingently

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continuation-in-part

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2:22 3:1,22 4:1

contrary

6:17

control22:3conversations

24:19copy

27:5,7Correct

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19:14 24:5 27:2correspondence

20:4corresponding

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could

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count

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16:1 18:1,4,5,7,1419:1,4,7,9,15,18 20:320:17 21:11,16 23:5,623:7,14 24:5,8,9 26:526:21,21 27:3,15counts

15:2,5,16 17:12,1618:8,13,16 19:8,8,2019:21 25:11course

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current

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2:16date

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day30:8deadline

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Deborah

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declarations

6:12,15 8:8declared

21:10,15declined

27:10degree

25:10

described16:2

description

10:14 13:21designated

19:14designating

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determine

17:7,17de-designated

25:12de-designating

26:4de-designation

14:1differ

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difference

11:21 12:2,4,12,13,17

different

16:10directed

22:19,20 23:5disadvantage

21:21disc

8:10

disclosures

15:22 16:10discuss

5:10 28:6discussed

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discussion

5:13,14 29:2

DK1:15

double-spaced

15:13down

15:10,19,22drafts

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drive

4:8 8:10dual

19:11 22:22Dunston

3:9

during

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E

earlier

15:14earliest

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either

8:10 21:18element

16:1,1,19,19else

25:19 28:19embodiments

19:11

EMMANUELLE

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19:9 21:12,17 22:21equal

16:17Erin

3:9

erin.dunston@bipc....

3:10Esq

2:14,16 3:5,9 4:5et

8:8

eukaryote

21:12eukaryotic

11:19 12:18even

11:21 20:6,21 22:12eventually

9:3,11

ever22:9

everybody

28:5,20everything

8:18,20 9:3,11 13:1018:22 20:19 28:5

examination

22:11 27:22examine

22:7

examiner20:22 22:5,7,9,11

27:22 28:1excessive

14:6exhibit

6:4,22 7:4

exhibits

5:20 6:3,10,18 8:1,2,8

8:14 9:4,12existing

20:3

exists

11:22

expect21:11explain

19:17extended

5:15extension

12:22 13:1

extent

17:8 24:22 26:3extra

10:3,6,18 11:2,2extraneous

10:10

e-mail

5:17

F

fact

7:21 16:20 17:11 20:1022:11,18 26:13

facts

15:12,12,14 16:16far

21:2FELLOWS

1:5

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8:5,6,20 12:19 22:1726:20

filed

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fit

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found

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Friday

29:4

Ggenerally

11:1 24:7generic

19:9,10 22:20,21 23:624:8GERSTEIN

4:7getting

9:5

given

12:3,3 17:18 25:2giving

6:12go

8:20 12:9 16:1,19 19:526:16goes

7:11 18:2going

12:16 17:13 19:16,1819:19,21,22 20:1

23:21 24:22 25:1026:4,17good

9:15 14:6

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6:10guess

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28:11guide

19:10,11,11 21:5 22:722:14,20,22,22

H

H

4:5hand

18:2,3

happy

27:13hard

10:9,16

HARVARD

1:5held

29:2helpful

6:19 14:6,7

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30:5highlighted

12:17

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14:10,14,20 16:1017:5 18:10 19:220:18 21:1 22:823:14 24:1,12 26:8,1528:7,17Honorable

2:1,2Honors

6:1 7:13 10:2 11:13,15

12:6,20 17:7,17 26:1hundred13:2 15:15hundreds

12:9

I

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24:13 25:20improperly

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1:5

include

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22:9

indicated

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indicates24:4

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3:11 4:20INSTITUTE

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26:13interfere

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1:15 2:4 6:5 7:19 19:1320:5 21:5,7,7,10,1521:18 23:2,4 25:13,1727:10

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11:1,3,8,17 12:5 13:2025:17

invention22:14

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5:16 10:9 20:1,7 25:6,828:3

J

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2:18JUDGE

5:2 7:1,6 8:22 9:14,1913:3,12,17 14:2,11,1815:18 16:4,11,15,2217:20 18:15,18 19:520:13,20 22:2,16 23:823:11,15,19 24:2,1026:10,16 27:18 28:2

28:13,16,20 29:1junior

1:9 2:3,12 13:7 15:826:13 27:5 28:18

K

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limited

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11:16 25:1 26:19 27:427:16listing

12:7,15listings

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little5:15

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4:3LLP

2:18 4:7long

15:14 25:7

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5:3 10:17 22:5looks

13:19lrinlaures@marshal...

4:4

M

M

3:9Margolis

2:16

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4:7MASSACHUSETTS

1:5material

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8:8 10:10,15

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7:6meaning

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mentioned

20:9might

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19:13Minnesota

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moment10:17

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10:5,7,12,14,22 12:513:22 14:13,17,20,2114:22 15:3,4,10,1618:3,5,11,21,22 19:419:6,8 20:2,12,15,1723:5,6,12,14,16,2124:9,16 25:17 26:6,626:12,12,15,20 27:15

motions8:5,7,7 10:13,19,21

11:8,16 13:7,15 14:1617:12 20:14 24:125:1 26:1,19 27:4,1628:9,12move

5:18 9:20 25:10

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2:6 30:4

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6:4,7,13,22 7:4

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28:8

quickly

5:18 16:3,21 28:14quite

10:17

R

R2:14 3:5

raise

5:16 7:16 25:8 27:16raised

24:18 25:7 28:3raising

11:17 12:4rather

5:18 7:22 8:9,11 12:917:6real

28:7really

6:9 11:5,16 12:11,1415:20reasonable

13:18 17:8

reasons

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received

22:12reconsideration

24:17record

7:7 29:1,2 30:7reduce

10:10

referenced

5:17regard

5:13,20 7:14 10:5,1110:14,22 11:5,7 14:1617:11 19:6 24:1525:5,11 26:1regarding

2:4REGENTS

1:11

rely

21:21remember

11:15 16:6repeat

18:22REPORTED

1:22

REPORTER'S30:1

representative

12:13request

6:9 10:3 12:10 13:618:19 21:6 22:1023:9 26:22 27:1,9

requested

5:8 15:8 21:5 23:1224:16,16 25:13 26:20

requesting13:7 15:7

requirement

6:2 14:4 22:13requirements

20:17resistance

12:1

resolution

25:15respect

15:1 18:6

respectfully

11:4

respective15:22 16:2 20:4respond

26:8restriction

22:13result

12:1 15:6

Richard

2:2right

5:2 13:12,15 14:2,9,1116:15,22 17:1,3,2018:16,18 23:18 26:1628:16Rin-Laures

4:3RNA

19:10 22:21,22

Rooney

3:11 4:20round

13:19rule

6:5 11:7

rules

4:21 6:17 7:15 24:14

S

same

16:5Sandip

4:5

say7:12,18 10:19,20 13:4saying

13:11

says

18:5Schafer

2:2 20:20 22:2scheduled

5:5section

15:10,19 18:4

seems

5:7 13:11,17 22:2

seen12:7 26:11senior

1:13 2:3 3:3 5:21 13:1114:13,14,19,20,2215:6 17:10 21:2024:13,20 25:20 26:1927:1 28:8

sense

7:8 13:3 14:3 18:1928:10

sentence16:20

separate

5:22separately

18:12,16 21:14,1622:15series

6:14service

7:15

set22:19 23:1 24:15 25:9

several

13:1should

7:12 17:15,21 21:14,1621:19 24:6,21 25:2,625:16 28:3

show

12:11,12 16:1side

6:6 7:21 8:6,7 10:511:13,14,18,20 12:14

simple

15:13 16:20since

18:10single

19:11 21:5 22:7,14,1922:22

skipping

7:4some

5:14 7:4 9:4,12 25:1026:4 28:2

something8:17 9:6,16 25:19sometimes

8:13sorry

19:14 21:2 22:20sort

6:10,13,21

South

4:[email protected]...

4:6specifically

5:19 27:3

specification

16:6specified

30:9staff

9:6,10staged

6:21

standing6:2 18:4 20:18 24:3

start

14:19 26:4started

12:5starting

6:15

State

2:6 30:5stated

27:1statement

15:12,14 16:16statements

15:11,13 17:19 20:10STATES

1:1

status

27:18


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stays

13:13stenographic

30:7Steve

5:13 28:18Steven

2:14

still

19:3 27:13streamlined

15:21streamlining

20:6

Street

2:19 3:12

strenuously26:2

structure

12:[email protected]

2:15subject

21:8,19

submitted

11:9substantive

12:1 17:9,16substantively

13:9

substitute

14:13,17 15:3 18:3,518:22 19:4,7 20:1723:5,7,14 24:9 26:2127:15

substituted

18:13substituting

17:22suggested

21:7suggesting

24:5Suite

3:13

sure

9:10 17:13 20:13

T

take

8:12 9:9 17:1 28:3taken

30:7takes12:8

talk

5:9 14:15 17:21 19:3talking

24:21tangible

18:16

TECHNOLOGY

1:5telephone

30:8terminology

12:17thank

7:10 9:18 14:9 28:1728:20,22thing

5:8 12:16

things

13:19 20:8 25:21think

5:2,7,17 7:12 8:22 9:111:21 12:14 13:1214:4,5,12 16:4,6,1616:22 17:8,9,14,16,2120:10 21:18 25:6,8,1525:20 28:2,3thought

6:19 12:10 28:10three

5:22 10:18 12:22 15:415:5,16,17 16:13

time8:12,12 21:4,9 22:9

25:2 26:21 27:12times

30:9Todd

3:5 9:21

[email protected]...

3:6together

6:11 12:6

told

24:17

total10:7 20:11towards

14:8Tower

4:9TRADEMARK

1:1

transcript

4:19Travis

3:[email protected]

3:8

trial

1:3 6:6trouble

9:5truths

19:17 21:22try

10:9,16 25:10 28:13

Trybus2:14 5:10,12,13 7:10

9:8,18,20 10:2 13:1013:15,16,22 14:9 17:317:5 24:10,12 28:1728:18,22trying

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5:11,22 8:7 14:1517:12,15 18:8,15

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ultimately

17:10under

17:1 28:4understand

7:7 8:15 9:9 11:6 23:22unique

6:13

UNITED

1:1

UNIVERSITY1:11,11USB

8:10use

8:6 27:11usual

8:1,3

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30:7VIENNA

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15:12Virginia

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27:21waive

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6:2Walters

3:5 5:10 7:1,3,17 8:710:1 13:4,5 14:14,1915:20 16:9,13,1817:19,21 18:2,17 19:219:6 20:16,20 21:1


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22:6,18 23:9,13,17,2224:3 26:8,11,14,1827:21 28:7,15

want

12:20 13:8 18:9,20

19:3 24:11 26:1827:11wanted

5:8,16 7:16 8:4 12:928:9wants

14:15 28:6wasn't

5:5

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we'll9:9,10 17:1

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8:19 10:15,17 11:1612:4 15:16 17:1318:10,13 19:21,2220:1,18 23:6,17 24:524:8 27:13

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15:20whatever

8:11whittled

15:10

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8:20Willis

4:9

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6:1work

9:7,10,16

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working

10:16works

8:16wouldn't

18:21

written

10:13

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Yeah

7:3 9:14 15:20 16:18

22:18 26:10yesterday

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29:3

106,0481:15 2:4

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19:2212

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20:1213/842,859

1:1213520:15135(b)

20:114/685,502

23:1 24:6 25:3 27:6

14/704,551

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2

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1:19 2:5 29:4 30:9,122100

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6:16

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9:4,13 10:1628

12:22

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10:20 12:22

33

10:5,12 26:21 27:330

13:20,20

312-222-9350

2:21312-474-6300

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10:7 13:14

3532:19

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10:13,20,21400

11:14

5

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10:14,21 13:22 24:16

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2:206300

4:9

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3:1572

12:8

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8,697,359

1:68,771,945

1:6

8,795,9651:68,865,406

1:68,871,445

1:6

8,889,356

1:68,895,308

1:68,906,616

1:68,932,8141:68,945,839

1:78,993,233

1:78,999,641

1:7


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9

9:33

1:20 2:5 5:1


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Broad v. UC


CORRECTIONS TO TRANSCRIPT OF TELEPHONE CONFERENCE

HELD ON MAY 6, 2016

PAGE LINE

CORRECTIONS REASON FOR

CORRECTIONFROM TO

1 19 9:33 a.m. 10:33 AM Eastern Time time zone


6 6 AAA AIA transcription error

10 15 materials claims transcription error

12 7 plea clean transcription error

18 16 tangible patentable transcription error

19 17 truths proofs transcription error

19 22 arb art transcription error

21 22 truths proofs transcription error

26 13 no inter fact [phonetic] no interference in fact transcription error

28 1 backed it acted transcription error


crispr patent interference may 6 conf call transcript

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