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

Filing 361

MEMORANDUM in Support re #360 MOTION for Extension of Time to June 5, 2007 to Extend Time to Serve Its Experts' Reports Regarding Testing of Roche's Late-Produced Cell Line (THIS IS A RENEWED MOTION) filed by Amgen Inc.. (Gottfried, Michael)

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

Doc. 361

Case 1:05-cv-12237-WGY

Document 361

Filed 04/06/2007

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UNITED STATES DISTRICT COURT 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.: 05 Civ. 12237 WGY

MEMORANDUM IN SUPPORT OF AMGEN'S RENEWED MOTION FOR AN EXTENSION OF TIME TO SERVE ITS EXPERTS' REPORTS REGARDING TESTING OF ROCHE'S LATE-PRODUCED CELL LINE

Dockets.Justia.com

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Amgen respectfully renews its request that the Court grant an extension of time for Amgen to supplement its expert reports to address experiments measuring the EPO production levels of the recently received DN2-3a3 cells. As was discussed in Amgen's motion papers1 that led to this Court's Order of January 23, 2007 compelling Roche to produce its cell line, the testing of Roche's cell line is the most direct evidence of Roche's infringement of the claims of the `349 patent. Amgen originally sought production of Roche's cell line in its First Set of Requests for Documents and Things served on October 30, 2006. Following Roche's refusal to comply and a month of fruitless negotiations, Amgen filed a motion to compel on January 10, 2007. On January 23, 2007, the Court granted that motion to compel, and ordered Roche to produce its cell line.2 One month later, Roche had still not complied with the Court's Order, despite Amgen's repeated requests that Roche comply with the Court's Order, and despite Amgen's further attempts to reach a compromise solution. Consequently, on February 23, 2007, Amgen filed a motion to enforce the Court's January 23, 2007 Order.3 Amgen explained that Roche had already deprived it of the necessary time to grow and investigate Roche's cells, and therefore requested (in addition to enforcement of the Court's earlier Order) an extension of time to submit

Docket Nos. 222 & 223, Plaintiff Amgen Inc.'s Motion To Compel Production Of Roche's Cell Lines & Memorandum in Support.
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See Order dated January 23, 2007.

Docket Nos. 293 & 294 ("Amgen Inc.'s 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 & Memorandum In Support."). 1

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expert reports addressing experiments performed with Roche's DN2-3a3 cells.4 The Court terminated Amgen's motion to enforce (as well as Roche's cross-motion to compel Amgen to produce its own cell lines) on February 27, 2007, and ordered the parties to produce their respective cell lines within thirty days.5 Finally, after more than four months of Amgen's attempts to reach a compromise with Roche, and after Amgen had to resort to two motions to compel the production of the cells, Roche produced a single sample6 of its cell line to Amgen on March 21, 2007 -- a little over two weeks before the deadline for the parties to submit initial expert reports. Moreover, Roche did not provide its recommended instructions (i.e., culture medium formulations and culture conditions) for the growth of its cell line until March 23, 2007, after Amgen had to request them. Roche's unjustified delay in producing its cells left Amgen's experts with less than two weeks to complete their work before the April 6 deadline for submission of opening expert reports ­ less than two weeks to acquire the necessary media components, grow the cells to the necessary stage, collect the culture medium from those cells, test that culture medium in a radioimmunoassay procedure, tabulate the results, and prepare expert reports based on those results. Indeed, Roche's suggested culture media formulation requires the addition of dozens of additional components to the standard base media, which are not readily available. Docket No. 294, at 3 ("Additionally, since Roche's unjustified delay of production has deprived Amgen of virtually all of the time originally allotted for expert discovery on this issue, Amgen respectfully requests that the Court allow Amgen two additional weeks to complete its infringement expert report.") and 8-9 ("Amgen respectfully requests that the Court . . . grant Amgen two additional weeks (until April 20, 2007) to submit its infringement expert report regarding the testing of Roche's DN2-3(a)3 cell line"). Docket No. 298 ("Modified Order Regarding Production of the Parties' Cell Lines And Applicable Restrictions of Use.").
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Despite Amgen's reasonable request for two individual samples, Roche produced only one sample, without explanation. 2

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Because there has not been sufficient time for Amgen's experts to even collect the materials to allow them to grow Roche's cells, it obviously has been impossible for those experts to run experiments with these cells including, for example, radioimmunoassays to determine whether the cells produce EPO at the rate specified by the claims of the `349 patent, or to prepare expert reports based on data generated from experiments. By delaying the production of its cells to Amgen for several months, Roche has effectively deprived Amgen's experts of the time needed to complete the investigation of Roche's cells prior to the deadline for submission of initial expert reports. Amgen therefore respectfully renews its request that the Court permit Amgen to serve supplementation to its expert reports to address any experiments or experimental data generated from these DN2-3a3 cells after April 6. In its February 23, 2007 motion to enforce this Court's order compelling Roche to produce its cells, Amgen requested an extension of time to April 20 to serve its expert reports on this issue. Due to the further delay in obtaining Roche's cells and preparing Roche's suggested media in which those cells could be grown, that original requested extension to April 20 is now insufficient. For these reasons, Amgen respectfully requests that the Court: (a) grant an extension of time of two months through June 6, 2007 for Amgen to

serve its Fed. R. Civ. P. 26(a)(2)(B) expert reports on the experiments measuring the EPO production levels of Roche's DN2-3a3 cells; and (b) grant any other relief which the Court deems appropriate and just.

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DATED: April 6, 2007 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 91320-1789 [phone]

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: [phone] Facsimile: [phone] Lloyd R. Day, Jr. (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) MARSHALL, GERSTEIN & BORUN LLP 233 South Wacker Drive 6300 Sears Tower Chicago, IL 60606 Telephone: [phone] Facsimile: [phone]

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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

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