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

Filing 1210

MOTION for Leave to Play a Designation for Leroy Hood which was Designated by Roche, Allowed by the Court, and Subsequently Withdrawn by Roche by Amgen Inc..(Rich, Patricia)

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Amgen Inc. v. F. Hoffmann-LaRoche LTD et al Doc. 1210 Case 1:05-cv-12237-WGY Document 1210 Filed 10/01/2007 Page 1 of 4 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ) ) ) Plaintiff, ) ) v. ) ) ) F. HOFFMANN-LAROCHE ) LTD., a Swiss Company, ROCHE ) DIAGNOSTICS GmbH, a German ) Company and HOFFMANN LAROCHE ) INC., a New Jersey Corporation, ) ) Defendants. ) __________________________________________) AMGEN INC., Civil Action No.: 05-12237 WGY PLAINTIFF AMGEN INC.'S MOTION FOR LEAVE TO PLAY A DESIGNATION FOR LEROY HOOD WHICH WAS DESIGNATED BY ROCHE, ALLOWED BY THE COURT, AND SUBSEQUENTLY WITHDRAWN BY ROCHE Case 1:05-cv-12237-WGY Document 1210 Filed 10/01/2007 Page 2 of 4 Amgen respectfully requests the Court to permit Amgen to play a specific, short designation (33:6-33:14) from the Hood transcript that was actually designated by Roche twice and admitted by the Court twice.1 Leroy Hood, a third party, was subpoenaed by Roche. This designation is a question posed to Dr. Hood by Roche's counsel. Roche did not object to Dr. Hood's response during the deposition. However, Roche now seeks to preclude Amgen from playing this designation. Because there is no prejudice to Roche, this designation should be allowed. In its counters to Amgen's designations, Roche designated a portion of Dr. Hood's transcript which indicated that Dr.Hood's microsequencer was available to the public in early to mid 1982.2 Roche also designated Dr. Hood's testimony that a "reasonable technician" could be trained to operate the microsequencer.3 At the same time, Roche designated another portion of the Hood transcript in which Dr. Hood testified that determining the sequence of a protein was a "necessary but not sufficient" step in cloning a rare message gene.4 All three designations were allowed by the Court, but Roche would now like to withdraw the third designation. This designation is necessary for completeness to address the suggestion that the publicly available microsequencer enabled one of ordinary skill in the art to clone the EPO protein. Roche will not be prejudiced in any way if Amgen is allowed to play this designation. Roche initially included this designation in its affirmative designations, before it withdrew the entire transcript. Roche again designated this portion in its counters to Amgen's affirmative designations. Thus, this designation comes as no surprise to Roche. 1 Roche originally provided designations for Dr. Hood, which included this designation. Following Roche's withdrawal of its affirmative designations, Amgen submitted affirmative designations for Dr. Hood and Roche provided counters. 2 3 Hood [04/02/2007] Dep. Tr. 28:6-10. Id. at 34:23-35:11. 1 Case 1:05-cv-12237-WGY Document 1210 Filed 10/01/2007 Page 3 of 4 Therefore, Amgen respectfully requests the Court to allow Amgen to include this designation in the video that is presented to the jury. October 1, 2007 Respectfully 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 91320-1789 (805) 447-5000 _____/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: (857) 488-4200 Facsimile: (857) 488-4201 LLOYD R. DAY, JR. (pro hac vice) DAY CASEBEER MADRID & BATCHELDER LLP 20300 Stevens Creek Boulevard, Suite 400 Cupertino, CA 95014 Telephone: (408) 873-0110 Facsimile: (408) 873-0220 WILLIAM GAEDE III (pro hac vice) McDERMOTT WILL & EMERY 3150 Porter Drive Palo Alto, CA 94304 Telephone: (650) 813-5000 Facsimile: (650) 813-5100 KEVIN M. FLOWERS (pro hac vice) MARSHALL, GERSTEIN & BORUN LLP 233 South Wacker Drive 6300 Sears Tower Chicago IL 60606 Telephone: (312) 474-6300 Facsimile: (312) 474-0448 4 Id. at 33:9-14. 2 Case 1:05-cv-12237-WGY Document 1210 Filed 10/01/2007 Page 4 of 4 CERTIFICATE PURSUANT TO LOCAL RULE 7.1 I certify that counsel for the Plaintiff has attempted to confer with counsel for the Defendants, F. Hoffman-LaRoche Ltd., Hoffman LaRoche Inc. and Roche Diagnostics GmbH, in an attempt to resolve or narrow the issues presented by this motion and that no agreement could be 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 on-registered participants. /s/ Patricia R. Rich Patricia R. Rich 1

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