Amgen Inc. v. F. Hoffmann-LaRoche LTD et al

Filing 1193

BRIEF by F. Hoffmann-LaRoche LTD, Roche Diagnostics GmbH, Hoffmann LaRoche Inc. Bench Memorandum: Dr. Browne Should be Precluded from Testifying About the Specific Claims of the Patents-In-Suit. (Toms, Keith)

Amgen Inc. v. F. Hoffmann-LaRoche LTD et al

Doc. 1193

Case 1:05-cv-12237-WGY

Document 1193

Filed 09/28/2007

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

AMGEN, INC., Plaintiff, v. F. HOFFMANN-LA ROCHE, Ltd, ROCHE DIAGNOSTICS GmbH, HOFFMANN-LA ROCHE INC., Defendants. BENCH MEMORANDUM: DR. BROWNE SHOULD BE PRECLUDED FROM TESTIFYING ABOUT THE SPECIFIC CLAIMS OF THE PATENTS-IN-SUIT Amgen's witness, Dr. Browne, should be precluded from testifying regarding the scope and validity of any of the claims of the patents-in-suit -- including how the claims-in-suit relate to EpogenŽ -- because he disclaimed having any knowledge of the subject matter of any of these claims. During his deposition on September 27, 2007, when asked about his understanding, Dr. Browne plainly stated that I didn't testify that I had some general understanding about the claims; I said I had general knowledge of the patents, of the specification, and I know there's a series of patents with a series of claims; but my understanding of the claims and how they relate to each other is . . . kind of superficial . . . . (9/27/07 Browne Tr. (Rough) 28:20-29:3 (emphasis added); see also 9/27/07 Browne Tr. (Rough) 30:11-13 ("I know that there are many claims, they relate to each other in ways that I don't understand or I don't completely follow")). When questioned further, Dr. Browne testified that he understands that Amgen's patents cover EpogenŽ through the press and that he gained information regarding the patents "from gossip in the hallways" and from "other people's impression of press accounts." (9/27/07 Browne Tr. (Rough) 35:5-7, 36:4-5, 38:19-20). 1
Dockets.Justia.com

Civil Action No. 05-12237 WGY U.S. District Judge Young

Case 1:05-cv-12237-WGY

Document 1193

Filed 09/28/2007

Page 2 of 3

Under Rule 602 of the Federal Rules of Evidence, a lay witness -- such as Dr. Browne -- may not testify to a matter unless he has personal knowledge of that matter. Similarly, because Dr. Browne's knowledge is borne "from gossip in the hallways" and "other people's impression," any such testimony would be inadmissible hearsay. Accordingly, in light of Dr. Browne's clear admission that he has no personal knowledge of the particular claims-in-suit, their scope or how they relate to each other, he should be precluded from testifying regarding any of the claims-in-suit. DATED: Boston, Massachusetts September 28, 2007 Respectfully submitted, F. HOFFMANN-LA ROCHE LTD, ROCHE DIAGNOSTICS GMBH, and HOFFMANN-LA ROCHE INC. By their Attorneys, /s/ Keith E. Toms Lee Carl Bromberg (BBO# 058480) Julia Huston (BBO# 562160) Keith E. Toms (BBO# 663369) Nicole A. Rizzo (BBO # 663853) Kimberly J. Seluga (BBO# 667655) ROMBERG & SUNSTEIN LLP 125 Summer Street Boston, MA 02110 Tel: [phone] [e-mail] Leora Ben-Ami (pro hac vice) Mark S. Popofsky (pro hac vice) Patricia A. Carson (pro hac vice) Thomas F. Fleming (pro hac vice) Howard S. Suh (pro hac vice) Peter Fratangelo (BBO# 639775) KAYE SCHOLER LLP 425 Park Avenue New York, NY 10022 Tel: [phone]

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Case 1:05-cv-12237-WGY

Document 1193

Filed 09/28/2007

Page 3 of 3

CERTIFICATE OF SERVICE I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF). Pursuant to agreement of counsel dated September 9, 2007, paper copies will not be sent to those indicated as non registered participants. /s/ Keith E. Toms Keith E. Toms
3099/501 747932.1

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