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

Filing 1407

Opposition re 1388 MOTION For A Corrective Instruction Regarding Roche's Patent on Pegylated Erythropoietin filed by F. Hoffmann-LaRoche LTD, Roche Diagnostics GmbH, Hoffmann LaRoche Inc.. (Fleming, Thomas)

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Amgen Inc. v. F. Hoffmann-LaRoche LTD et al Doc. 1407 Case 1:05-cv-12237-WGY Document 1407 Filed 10/15/2007 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS AMGEN, INC., Plaintiff, v. F. HOFFMANN-LA ROCHE, LTD Company, ROCHE DIAGNOSTICS GMBH, and HOFFMANN-LA ROCHE INC., Defendants. Civil Action No. 05-12237 WGY ROCHE'S OPPOSITION TO AMGEN'S MOTION FOR A CORRECTIVE INSTRUCTION REGARDING ROCHE'S PATENT ON PEGYLATED ERYTHROPOIETIN This Court has already considered and rejected each and every argument raised by Amgen in its motion seeking a corrective instruction to the Jury regarding the relevance to infringement of Roche's patent on pegylated erythropoietin. (D.I. 1388; See 10/15/07 Electronic Order denying D.I. 824 - Amgen's Motion in Limine No. 1 to exclude Roche from referring to its own patent on pegylated erythropoietin). Amgen has attempted to show during its infringement case that the chemical reaction employed by Roche in making CERA is routine and straightforward. Roche's patent suggests otherwise. Thus, Amgen's request for an instruction focused on Roche's patent is but a thinly veiled attempt by Amgen to gain the Court's unwarranted assistance in diminishing Roche's patent in the eyes of the jury. In addition, Roche objects to Amgen's request that the Court characterize Roche's accused product as an "improvement." Roche will show that -- rather than a mere improvement 1 Dockets.Justia.com Case 1:05-cv-12237-WGY Document 1407 Filed 10/15/2007 Page 2 of 3 on an existing product -- MIRCERA is a novel chemical compound materially different from any product or process within the properly defined scope of the patents in suit. Accordingly, Roche respectfully requests that the Court deny Amgen's request for a corrective jury instruction. DATED: October 15, 2007 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) Mark S. Popofsky (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) Peter Fratangelo (BBO# 639775) Krista M. Rycroft (pro hac vice) 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 1407 Filed 10/15/2007 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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