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

Filing 1281

MOTION [RENEWED] To Admit Exhibit BWZa (In Redacted Form) Into Evidence by Amgen Inc.. (Attachments: # 1 Exhibit A)(Gottfried, Michael)

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Amgen Inc. v. F. Hoffmann-LaRoche LTD et al Doc. 1281 Case 1:05-cv-12237-WGY Document 1281 Filed 10/03/2007 Page 1 of 4 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS AMGEN, INC., Plaintiff, v. F. HOFFMANN-LAROCHE LTD., a Swiss Company, ROCHE DIAGNOSTICS GMBH, a German Company, and HOFFMANN LAROCHE INC., a New Jersey Corporation, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 05 CV 12237 WGY PLAINTIFF AMGEN INC.'S RENEWED MOTION TO ADMIT EXHIBIT BWZa (IN REDACTED FORM) INTO EVIDENCE Pursuant to the Court's order of October 3, 2007, Plaintiff Amgen Inc. ("Amgen") respectfully moves to have a redacted version of Exhibit BWZa moved into evidence in this case for the reasons set forth below.1 Exhibit BWZa consists of admission of fact made by defendant Roche Diagnostics GmbH ("Roche") in a European patent proceeding. This submission in the patent proceeding was authored by representatives or employees of Roche. Accordingly, as this Court stated previously, the statements made in this document are admissions of Roche and as such, pursuant to Fed. R. Evid. 801(d)(2) they do not constitute hearsay.2 Following similar reasoning as this 1 2 A copy of the redacted version of Exhibit BWZa is attached hereto as Exhibit A. See Trial Transcript, 9/04/2007, p. 6:14-19: Well, foreign proceedings, they may be admissions if they're, if they're admissions of fact. I don't see how the jury would be confused. But foreign proceedings are under a different legal framework. DM1\1202124.1 Case 1:05-cv-12237-WGY Document 1281 Filed 10/03/2007 Page 2 of 4 Court, other courts have found that submissions in foreign patent proceedings are admissions by party opponents.3 Pursuant to Fed. R. Evid. 801(d)(2), this document is "being offered against a party and is (1) the party's own statement, in either an individual or a representative capacity or . . . (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment made during the existence of the relationship." Admissions by party opponents are excluded from the category of hearsay.4 Parties are not prejudiced by the admission into evidence of their own statements since the parties may take the stand and contradict the statement if they so choose.5 This document is relevant because Roche makes statements of fact in it that directly undercut both Roche's current postition that it would have been obvious to clone the EPO gene in 1983/1984 using cDNA cloning and its implied assumption today that a suitable source of EPO mRNA existed in 1983/1984. Specifically, Roche states in this document that (1) cDNA cloning requires a suitable source of EPO mRNA and (2) no suitable source of EPO mRNA was known by 1983/1984. For the reasons set forth above, Amgen requests that a redacted version of Exhibit BWZa be moved into evidence in this matter. 3 See Pfizer, Inc. v. Teva Pharms. USA, Inc., 2006 U.S. Dist. LEXIS 77970 (D.N.J. Oct. 26, 2006) citing Hearsay Handbook 35:3 at 35-25 (4th ed.) (court finding that expert affidavits submitted to the European Patent Office were admissions under 801(d)(2)). 4 5 See Fed. R. Evid. 801(d)(2). See Globe Sav. Bank, F.S.B. v. United States, 61 Fed. Cl. 91, 94-95 (2004), judgment entered 65 Fed. Cl. 330 (2005), aff'd in part, rev'd in part on other grounds, 189 Fed. Appx. 964 (Fed. Cir. 2006). 2 DM1\1202124.1 Case 1:05-cv-12237-WGY Document 1281 Filed 10/03/2007 Page 3 of 4 Dated: October 3, 2007 Respectfully Submitted, AMGEN INC., By its attorneys, /s/ Michael R. Gottfried 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 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 McDERMOTT WILL & EMERY 3150 Porter Drive Palo Alto, CA 94304 Telephone: (650) 813-5000 Facsimile: (650) 813-5100 KEVIN M. FLOWERS MARSHALL, GERSTEIN & BORUN LLP 233 South Wacker Drive 6300 Sears Tower Chicago IL 60606 Telephone: (312) 474-6300 Facsimile: (312) 474-0448 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 (805) 447-5000 3 DM1\1202124.1 Case 1:05-cv-12237-WGY Document 1281 Filed 10/03/2007 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/ Michael R. Gottfried Michael R. Gottfried 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 October 3, 2007. /s/ Michael R. Gottfried Michael R. Gottfried 4 DM1\1202124.1

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