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

Filing 1198

MOTION to Quash Subpoena ad Testificandum Served on Third Party Dr. Fu-Kuen Lin by Amgen Inc..(Rich, Patricia)

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

Doc. 1198

Case 1:05-cv-12237-WGY

Document 1198

Filed 09/28/2007

Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ) ) ) Plaint iff, ) ) v. ) ) ) F. HOFFMANN-LA ROCHE ) LTD., a Swiss Company, ROCHE ) DIAGNOSTICS GmbH, a German ) Company and HOFFMANN-LA ROCHE ) INC., a New Jersey Corporation, ) ) Defendants. ) __________________________________________) AMGEN INC.,

Civil Action No.: 05-12237 WGY

AMGEN'S MOTION TO QUASH SUBPOENA AD TESTIFICANDUM SERVED ON THIRD PARTY DR. FU-KUEN LIN Dr. Fu-Kuen Lin and Amgen Inc. respectfully move pursuant to Fed. R. Civ. P. 45 and F.R.E. 611 for an Order quashing the Subpoena Ad Testificandum that Roche served on Dr. Lin to compel his appearance at the Court's obviousness-type double patenting ("ODP") hearing on October 1, 2007. Roche held Dr. Lin in Boston throughout the first two weeks of trial, disclosing him on its witness list day after day, only to discourteously drop him without explanation at the end of Roche's validity case-in-chief. Now, after Dr. Lin has been on the stand for two days and has endured wide-ranging cross examination by Roche's counsel, Roche seeks to keep Dr. Lin in Boston for yet another week, beginning on October 1, 2007, so that Roche can elicit further testimony regarding Roche's ODP defenses. Roche's subpoena is unduly burdensome and should be quashed. Further testimony from Dr. Lin is wholly unnecessary because the Court already has the

1
Dockets.Justia.com

Case 1:05-cv-12237-WGY

Document 1198

Filed 09/28/2007

Page 2 of 4

informat ion required to decide the ODP issues remaining in this case. See generally Amgen's Bench Memorandum and Offer of Proof Regarding No Obviousness-Type Double Patenting (D.I. 1162) (explaining the legal principles and evidence relevant to Roche's ODP defenses). The patents and prosecution histories are in evidence. The Court has heard numerous witnesses testify concerning the level of ordinary skill in the art and the state of the art at the time of Lin's inventions. And, to the extent the Court decides to consider expert testimony regarding ODP, both parties already have provided such testimony. At best, any additional factual knowledge that Dr. Lin might possess concerning ODP issues would be duplicative of the patents and prosecution histories already in evidence, or merely cumulative of his prior testimony in this case. Roche has already had ample opportunity to elicit Dr. Lin's testimony -- both during its cross examination and during the half-dozen consecutive Court days for which Roche previously demanded Dr. Lin's presence. Roche should not be granted yet another opportunity at Dr. Lin's expense, especially since any additional testimony would be of minimal value to the Court's ODP analysis. Because it would be unduly burdensome and wasteful under these circumstances to require Dr. Lin to remain in Boston for a third week of trial, Amgen respectfully requests that the Court grant this motion to quash Roche's subpoena. In support of this motion, Dr. Lin and Amgen submit the accompanying memorandum of law.

2

Case 1:05-cv-12237-WGY

Document 1198

Filed 09/28/2007

Page 3 of 4

Dated: September 28, 2007

Respect fully Submitted, AMGEN INC., By its attorneys,

Of Counsel: STUART L. WATT WENDY A. WHITEFORD MONIQUE L. CORDRAY DARRELL G. DOTSON KIMBERLIN L. MORLEY ERICA S. OLSON AMGEN INC. One Amgen Center Drive Thousand Oaks, CA 91320-1889 [phone]

/s/ Patricia R. Rich D. DENNIS ALLEGRETTI (BBO#545511) MICHAEL R. GOTTFRIED (BBO#542156) PATRICIA R. RICH (BBO#640578) DUANE MORRIS LLP 470 Atlantic Avenue, Suite 500 Boston, MA 02210 Telephone: [phone] Facsimile: [phone] LLOYD R. DAY, JR DAY CASEBEER MADRID & BATCHELDER LLP 20300 Stevens Creek Boulevard, Suite 400 Cupertino, CA 95014 Telephone: [phone] Facsimile: [phone] WILLIAM GAEDE III McDERMOTT WILL & EMERY 3150 Porter Drive Palo Alto, CA 94304 Telephone: [phone] Facsimile: [phone] KEVIN M. FLOWERS MARSHALL, GERSTEIN & BORUN LLP 233 South Wacker Drive 6300 Sears Tower Chicago IL 60606 Telephone: [phone] Facsimile: [phone]

3

Case 1:05-cv-12237-WGY

Document 1198

Filed 09/28/2007

Page 4 of 4

CERTIFICATE PURSUANT TO LOCAL RULE 7.1 I certify that counsel for the parties have conferred in an attempt to resolve or narrow the issues presented by this motion and no agreement was reached. /s/ Patricia R. Rich Patricia R. Rich

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 and paper copies will be sent to those indicated as non-registered participants on September 28, 2007. /s/ Patricia R. Rich Patricia R. Rich

4