On April 17th, CVC filed its Reply to Broad's Opposition (filed on April 9th) to CVC's Miscellaneous Motion No. 2 to Exclude Evidence filed (on April 2nd), in Interference No 106,155 between Senior Party The Broad Institute, Harvard University, and the Massachusetts Institute of Technology (collectively, "Broad") and Junior Party the University of California/Berkeley, the University of Vienna, and Emmanuelle Charpentier (collectively, "CVC").

In its brief in support of its Miscellaneous Motion No. 2, CVC argued that four prior art references should not be considered by the Board because they were not cited in any of Broad's papers; declarations from several individuals, including some of Broad's inventors, are inadmissible as hearsay because these individuals had not been made available for deposition; and certain expert testimony fails the Supreme Court's Daubert test for expert testimony admissibility.

Broad opposed, and its brief made two broad points.  First, Broad characterized the evidence objected to as hearsay was submitted merely as a "proffer" to the Board that set forth Broad's arguments to be submitted during the Priority Phase, and that Broad asserted that CVC made similar proffers relying on purported hearsay during the '048 Interference.  Broad asserted it proffer exception to the hearsay rule for the Sanjana, Lambowitz, and Zhang declarations, as well as the Cong 2013 reference and that CVC's hearsay objections "are, at best, premature."  Not surprisingly Broad defended the competence of its expert Dr. Mirkin, noting that his expertise is relevant to eukaryotic applications of CRISPR technology, specifically having to do with technology for introducing proteins and nucleic acids into eukaryotic cells.

In its Reply, CVC argues that Broad had not rebutted CVC's hearsay arguments and challenges the authority Broad cited, Byrn v. Aronhime, Patent Inf. 105,384 (McK), Paper 64 at 12:17-20 (PTAB Sept. 20, 2006), as being directed to the narrow context of a motion to change a count.  While not acquiescing that its hearsay arguments might not be persuasive regarding Broad's Motion No. 2, CVC maintained that hearsay precluded the Board from considering this evidence for Broad's Motion No. 3 and Motion No. 4, or Broad's Oppositions to CVC's Motion No. 1 and Motion No. 2 (for the benefit of priority).  CVC supports its arguments with citations from Broad's Motions No. 3 and 4 and how Broad asserted the evidence CVC objected to in its Miscellaneous Motion No. 2 in support of its Substantive Motions and Oppositions to CVC's Substantive Motions.  CVC argues that "[n]othing in the statutes, rules, or case law authorizes a movant to rely on inadmissible evidence to support Motions and Oppositions related to priority benefit or de-designating claims.  To the contrary, motions must be supported by evidence, and the admissibility of that evidence may be challenged in a motion to exclude," citing SO ¶¶ 121.4.1; 152.2.1; 155.2.2.  Moreover, CVC argues that the evidence it objects to was offered for the truth of the matter asserted and thus inadmissible hearsay and not, as Broad argues merely a proffer of the evidence Broad might prove.

CVC also rebuts Broad's "tit-for-tat" argument that CVC itself had relied on similar evidence in the earlier Interference No. 106,048, by distinguishing that evidence as "a proffer of CVC's best proofs to support a motion to change the count," citing Univ. of S. Calif. v. DePuy Spine, Inc., Patent Interference 105,653, Paper 169 (PTAB 2013).  CVC also asserts that unlike its allegations against Broad in its brief in support of its Miscellaneous Motion to Exclude, its affiant was made available for deposition.

With regard to Broad's expert, CVC characterizes Broad's statements in its Opposition brief as overstating Dr. Mirkin's expertise.  The brief reiterates the differences in Dr. Mirkin's area(s) of expertise ("Broad has failed to show that Dr. Mirkin's experience with gold and silver nanoparticles somehow makes him an expert on the technical issues relevant to CVC's priority benefit") and lack of specific expertise in CRISPR technology:

Dr. Mirkin's CV and cross-examination testimony demonstrate he has no specialized expertise regarding CRISPR systems or gene editing.  Tellingly, he has never even published a single paper on CRISPR systems, or even used CRISPR himself.  At deposition, Dr. Mirkin could not answer basic questions about how CRISPR-Cas9 systems actually function in eukaryotic cells.

For these reasons CVC reiterates its argument that Dr. Mirkin's testimony should be excluded.