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

Filing 1230

Response by F. Hoffmann-LaRoche LTD, Roche Diagnostics GmbH, Hoffmann LaRoche Inc. Roche's Opposition to Amgen's Motion to Supplement Trial Exhibit 2011. (Fleming, Thomas)

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Amgen Inc. v. F. Hoffmann-LaRoche LTD et al Doc. 1230 Case 1:05-cv-12237-WGY Document 1230 Filed 10/01/2007 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, and HOFFMANN-LA ROCHE INC., Defendants. Civil Action No. 05-12237 WGY U.S. District Judge Young ROCHE'S OPPOSITION TO AMGEN'S MOTION TO SUPPLEMENT TRIAL EXHIBIT 2011 Trial Exhibit 2011 is a copy of the prosecution history of the Amgen's U.S. Patent Application No. 113, 178. Notably, the admitted trial exhibit is a copy which Amgen specifically agreed to admit into evidence. Amgen contends that this exhibit includes a declaration of Dr. Strickland, which apparently in the admitted trial exhibit (as well as in the various other versions of the file history that Amgen produced to Roche) contains certain unreadable photographs. Amgen now seeks to supplement the admitted trial exhibit with an alleged duplicate copy of Dr. Strickland's original declaration, which Amgen never produced to Roche. Roche opposes Amgen's improper attempt to belatedly change Trial Exhibit 2011 by adding an entirely new document containing evidence portrayed in photographs that have previously been unavailable to Roche. As Amgen's counsel admits, this "duplicate" has apparently been in Amgen's possession since the beginning of this case. Amgen had ample 1 Dockets.Justia.com Case 1:05-cv-12237-WGY Document 1230 Filed 10/01/2007 Page 2 of 3 opportunity during discovery to properly produce and authenticate this version of Dr. Strickland's declaration. In particular, there is no evidence or substantiation that Amgen's alleged duplicate is an authentic copy of the declaration which Amgen provided to the Patent Office. Moreover, Roche will be severely prejudiced by being confronted in the middle of trial with new evidence, which only now Amgen claims is necessary to its case. For all the foregoing reasons, Roche respectfully requests that Amgen's motion be denied. DATED: October 1, 2007 F. HOFFMANN-LA ROCHE, LTD, ROCHE DIAGNOSTICS GMBH, and HOFFMANN-LA ROCHE INC. By its attorneys, /s/ Christopher T. Jagoe Leora Ben-Ami (pro hac vice) Patricia A. Carson (pro hac vice) Thomas F. Fleming (pro hac vice) Howard S. Suh (pro hac vice) Christopher T. Jagoe (pro hac vice) Vladimir Drozdoff (pro hac vice) Peter Fratangelo (BBO# 639775) KAYE SCHOLER LLP 425 Park Avenue New York, New York 10022 Tel. (212) 836-8000 and Lee Carl Bromberg (BBO# 058480) Julia Huston (BBO# 562160) Keith E. Toms (BBO# 663369) Nicole A. Rizzo (BBO# 663853) BROMBERG & SUNSTEIN LLP 125 Summer Street Boston, MA 02110 Tel. (617) 443-9292 2 Case 1:05-cv-12237-WGY Document 1230 Filed 10/01/2007 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/ Thomas F. Fleming Thomas F. Fleming 3

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