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

Filing 295

DECLARATION re #293 MOTION to Enforce the Court's January 23, 2007 Order Compelling Roche to Produce its Cell Line and to Extend the Time for Amgen to Submit its Infringement Expert Report Regarding the Testing of Roche's DN2-3(a)3 Cell Line BY KRISTA M. CARTER by Amgen Inc.. (Attachments: #1 Exhibit 1#2 Exhibit 2#3 Exhibit 3#4 Exhibit 4#5 Exhibit 5#6 Exhibit 6#7 Exhibit 7#8 Exhibit 8#9 Exhibit 9#10 Exhibit 10#11 Exhibit 11#12 Exhibit 12#13 Exhibit 13)(Gottfried, Michael)

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

Doc. 295 Att. 11

Case 1:05-cv-12237-WGY

Document 295-12

Filed 02/23/2007

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Exhibit 11

Dockets.Justia.com

Case 1:05-cv-12237-WGY Document 295-12 Filed 02/23/2007 Page 2 of 5

DAY CASEBEER MADRID & BATCHELDER LLP
20300 Stevens Creek Blvd., Suite 400 Cupertino, CA 95014 Telephone : [phone] Facsimile : [phone] Krista M . Carter [phone] kcarter@daycasebeer .com

February 22, 2007
VIA EMAIL & FACSIMILE

Patricia A . Carson, Esq. Kaye Scholer LLP 425 Park Avenue New York, NY 10022-3598 Re : Amgen Inc. v. F. Hoffmann-La Roche Ltd., et al. (05-CV-12237 WGY)

Dear Pat: I write in response to your letter to me of earlier today . Amgen has been negotiating with Roche in good faith for several weeks now to obtain the discovery regarding Roche's EPO-producing cell line that Amgen is entitled to, and indeed was ordered by the Court . Amgen does not believe that further negotiation is productive but instead that it is only delaying resolution of this issue and further prejudicing Amgen's ability to adduce this evidence of infringement. By entering into the stipulation, Amgen is foregoing discovery of Roche's cell line to which it is entitled by court order. The stipulation preserves Roche's ability to make whatever arguments it so chooses regarding the alleged invalidity of the asserted claims and should be accepted by Roche. Likewise, Amgen will preserve its ability to make whatever arguments it so chooses and the stipulation speaks for itself. Therefore, please either agree to the attached stipulation or agree to produce within 5 business days Roche's EPO-producing cell line, subject the Amgen's proposed use and handling restrictions. If Roche refuses to do so, Amgen will seek relief from the Court. I look forward to speaking to you on this issue during our scheduled call tomorrow morning. Sincerely,
DAY CASEBEER MADRID & BATCHELDER LLP

Krista M . Carter Enclosure cc : Howard Suh, Esq. Thomas Fleming, Esq. Michele Moreland, Esq. Mark Izraelewicz, Esq.

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ) ) ) ) ) Civil Action No . : 05-12237 WGY ) ) ) ) ) ) ) ) ) ) )

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 .

JOINT STIPULATION REGARDING PRODUCTION OF ROCHE'S CELL LINE The parties to this action, by and through their counsel, stipulate and agree to the following: 1. In lieu of producing its production cell line DN2-3a3 in accordance with the Court's order of January 23, 2007, and without waiving its right to assert that the claims of U .S . Patent No. 5,756,349 are invalid on any ground, Roche stipulates that its DN23a3 cells are "capable upon growth in culture of producing erythropoietin in the medium of their growth in excess of 1000 U of erythropoietin per 106 cells in 48 hours as determined by radioimmunoassay." In exchange for this stipulation, Amgen agrees to withdraw its motion to compel production of Roche's cell lines and to withdraw its requests for production on Roche's cell lines . Likewise, in exchange for this stipulation, Roche agrees to withdraw its requests for production of any of Amgen's cell lines. In the event that either party advances a new argument regarding its cell line that requires testing or analysis of the other party's cell line to meet or rebut such argument, each party reserves its right to renew its request for the other party's cell line .

2.

3.

Case 1:05-cv-12237-WGY

Document 295-12

Filed 02/23/2007

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Dated : February 22, 2007

Respectfully Submitted, AMGEN INC., By its attorneys, PLAINTIFF AMGEN INC.

DEFENDANT, F . HOFFMANN-LA ROCHE LTD ., ROCHE DIAGNOSTICS GMBH, AND HOFFMAN-LA ROCHE INC. By their attorneys,

By its attorneys,

Lee Carl Bromberg (BBO# 058480) Julia Huston (BBO# 562160) Keith E . Toms (BBO#663369) Nicole A . Rizza (BBO# 663853) BROMBERG & SUNSTEIN LLP 125 Summer Street Boston, MA 02110 Tel . [phone] 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) KAYE SCHOLER LLP 425 Park Avenue New York, NY 10022 Tel . [phone]

D . Dennis Allegretti (BBO#545511) Michael R. Gottfried (BBO# 542156) DUANE MORRIS LLP 470 Atlantic Avenue, Suite 500 Boston, MA 02210 Telephone : [phone] Facsimile : [phone] Lloyd R. Day, Jr . (pro hac vice) Linda A. Sasaki-Baxley (pro hac vice) Deborah E. Fishman (pro hac vice) DAY CASEBEER MADRID & BATCHELDER LLP 20300 Stevens Creek Boulevard, Suite 400 Cupertino, CA 95014 Telephone : [phone] Facsimile : [phone] William G. Gaede III (pro hac vice) McDERMOTT WILL & EMERY 3150 Porter Drive Palo Alto, CA 94304 Telephone : [phone] Facsimile : [phone] Kevin M . Flowers (pro hac vice) Thomas I . Ross (pro hac vice) MARSHALL, GERSTEIN & BORUN LLP 233 South Wacker Drive 6300 Sears Tower Chicago IL 60606 Telephone : [phone] Facsimile : [phone]

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Case 1:05-cv-12237-WGY

Document 295-12

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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 and paper copies will be sent to those indicated as non registered participants on February 15, 2007.

/s/ Michael R. Gottfried Michael R. Gottfried