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

Filing 1308

Opposition re 1290 MOTION in Limine To Preclude Drs. Lodish and Torchilin From Presenting Animations Not Discussed in Their Expert Reports filed by Amgen Inc.. (Gottfried, Michael) Additional attachment(s) added on 10/9/2007 (Paine, Matthew).

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Amgen Inc. v. F. Hoffmann-LaRoche LTD et al Doc. 1308 Case 1:05-cv-12237-WGY Document 1308 Filed 10/04/2007 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF MASSACHUSETTS AMGEN INC., Plaintiff, 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. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No.: 1:05-cv-12237 WGY AMGEN INC.'S OPPOSITION TO AMGEN'S MOTION IN LIMINE TO PRECLUDE DRS. LODISH AND TORCHILIN FROM PRESENTING ANIMATIONS NOT DISCUSSED IN THEIR EXPERT REPORTS Roche's motion1 should be denied because both Drs. Lodish and Torchilin disclosed and discussed in their expert reports the animations of which Roche now complains. As discussed previously in Amgen's Bench Memorandum That It Is Appropriate for Dr. Lodish To Use Computer-Modeled Demonstratives That Will Assist the Jury in Understanding His Infringement Testimony,2 Dr. Lodish's expert reports fully explained the basis for his use of the animation model,3 and explained in detail the relevance, methodology and data sources for the depictions in the animation.4 Thus, Dr. Lodish should be allowed to testify as to all these topics. Roche has no basis for its assertion that Dr. Torchilin did not discuss animations attached as exhibits in his expert report. Contrary to Roche's mis-citation of Dr. Torchilin's expert report, 1 2 Roche's Motion at Docket No. 1290. Docket No. 1267. 3 See 10/03/07 Declaration of Daniel A. Curto, Ex. A (Docket No. 1268) Expert Report of Harvey F. Lodish, Ph.D. Regarding Infringement, 102). 4 See 10/03/07 Curto Decl., Ex. A, 102-104. MPK 133343-1.041925.0023 1 PLAINTIFF'S OPP TO DEFENDANT'S MIL TO EXCLUDE TESTIMONY RE: ANIMATIONS CIVIL ACTION NO. 1:05-CV-12237 WGY Dockets.Justia.com Case 1:05-cv-12237-WGY Document 1308 Filed 10/04/2007 Page 2 of 4 in paragraph 58 of his April 6, 2007 Expert Report, Dr. Torchilin made specific references to the attached animations and offered a detailed explanation of their contents.5 Dr. Torchilin also incorporated by reference all previous graphics and demonstratives in paragraph 5 of his June 1, 2007 Expert Report. Testimony at trial from Dr. Torchilin regarding these animations is squarely within the metes and bounds of his expert reports. As such, the Court should not preclude Dr. Torchilin from presenting these animations by either visual or narrative means, or from referring to screen-shots from these animations. DATED: Of Counsel: October 4, 2007 Respectfully Submitted, AMGEN INC., /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. (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 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 Paragraph 58 of Dr. Torchilin's April 6, 2007 expert report states "Roche's attachment of a 30 kDa PEG molecule to the amino group at EPO's N-Terminus or at certain Lysines does not materially change the amino acid sequence, the secondary structure, the tertiary structure, or the carbohydrate structure of EPO. I have attached two animations to my report which show PEG attached to EPO, and a comparison of EPO to peg-EPO. (Exs. 136 and 137,01 8W A_O.mov; 014wa_l-h264.mov 4/3/2007.) These animations are representations of the general spatial behavior of PEG and EPO." MPK 133343-1.041925.0023 5 2 PLAINTIFF'S OPP TO DEFENDANT'S MIL TO EXCLUDE TESTIMONY RE: ANIMATIONS CIVIL ACTION NO. 1:05-CV-12237 WGY Case 1:05-cv-12237-WGY Document 1308 Filed 10/04/2007 Page 3 of 4 William G. 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 MPK 133343-1.041925.0023 3 PLAINTIFF'S OPP TO DEFENDANT'S MIL TO EXCLUDE TESTIMONY RE: ANIMATIONS CIVIL ACTION NO. 1:05-CV-12237 WGY Case 1:05-cv-12237-WGY Document 1308 Filed 10/04/2007 Page 4 of 4 CERTIFICATE OF SERVICE I hereby certify that this document filed through the Electronic Case Filing (ECF) system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants on the above date. /s/ Michael R. Gottfried Michael R. Gottfried -1MPK 133343-1.041925.0023

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