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

Filing 1403

Opposition re 1384 MOTION To Preclude Roche's Expert Dr. Gregory D. Longmore From Offering Opinions Based On An Infringement Analysis That Is Inconsistent With Federal Circuit Precedent And With The Court's Claim Construction Ruling That Amgen's Claims Ar filed by F. Hoffmann-LaRoche LTD, Roche Diagnostics GmbH, Hoffmann LaRoche Inc.. (Fleming, Thomas)

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

Doc. 1403

Case 1:05-cv-12237-WGY

Document 1403

Filed 10/15/2007

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

AMGEN, INC., Plaintiff, v. Civil Action No. 05-CV-12237 WGY F. HOFFMANN-LA ROCHE, LTD., ROCHE DIAGNOSTICS GMBH, and HOFFMANN-LA ROCHE, INC. Defendants. ROCHE'S OPPOSITION TO AMGEN'S "MOTION TO PRECLUDE ROCHE'S EXPERT DR. GREGORY LONGMORE FROM OFFERING OPINIONS BASED ON AN INFRINGEMENT ANALYSIS THAT IS INCONSISTENT WITH FEDERAL CIRCUIT PRECEDENT AND WITH THE COURT'S CLAIM CONSTRUCTION RULING THAT AMGEN'S CLAIMS ARE OPEN-ENDED (DI 1384)" Amgen's motion to preclude Dr. Longmore's testimony on claim 3 of the `933 patent is nothing more than an improper attempt to circumvent this Court's settled claim construction. Moreover, Amgen's assertions in its motion flatly contradict the sworn testimony of Amgen's own experts. Amgen's motion should be denied. In its July 3, 2007 Markman Memorandum and Order (DI 613), this Court specifically construed the `933 claim 3's claim term "glycoprotein product of...expression in a mammalian host cell" to mean "a glycoprotein that is the product of...expression in a mammalian host cell." (DI 613 at p. 32). This definition squarely comports with the well-established principle of claim construction that the words of a claim "`are generally given their ordinary and customary meaning.'" Id. at p. 9 (citing Phillips v. AWH Corp., 415 F.3d 1303, 1312 Fed. Cir. 2005). Amgen's attempt to escape the Court's explicit claim construction, through strained analogy to a different claim term (namely, "human erythropoietin") is without merit.

Dockets.Justia.com

Case 1:05-cv-12237-WGY

Document 1403

Filed 10/15/2007

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There is no dispute that the claims of the `933 patent require that their claimed product be made in a mammalian host cell. See, e.g., Testimony of Dr. Lodish at Trial Tr. 2507:21 - 2508:1. It is also undisputed that CERA is not made in a cell, and is not the "product of expression in a mammalian host cell" as required by the claims of the `933 patent. See, e.g., Testimony of Dr. Lodish at Trial Tr. 2505:14-18 (confirming that CERA, "itself, is not made in a mammalian host cell."); see also Trial Tr. at 2506:13-14, 2507:17-20, 2507:21 - 2508:1 For all of the foregoing reasons, Amgen's motion should be denied. Dated: October 15, 2007 Boston, Massachusetts Respectfully submitted, F. HOFFMANN-LA ROCHE LTD, ROCHE DIAGNOSTICS GMBH, and HOFFMANN-LA ROCHE INC. By its attorneys, /s/ Thomas F. Fleming 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. [phone] 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. [phone]

Case 1:05-cv-12237-WGY

Document 1403

Filed 10/15/2007

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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