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

Filing 414

EXHIBIT re #381 MOTION To Enforce the Court's March 27, 2007 Order and to Compel Deposition Testimony under Rule 30(b)(6) Exhibit B (Part 2 of 2) by F. Hoffmann-LaRoche LTD, Roche Diagnostics GmbH, Hoffmann LaRoche Inc.. (Toms, Keith)

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ) ) ) ) ) ) ) CIVIL ACTION No.: 05-CV-12237WGY ) ) ) ) ) )

AMGEN INC., Plaintiff, v. F. HOFFMANN-LA ROCHE LTD, ROCHE DIAGNOSTICS GmbH, and HOFFMANN-LA ROCHE INC. Defendants.

Exhibit B in Support of Defendants' Motion to Enforce the Court's March 27, 2007 Order and to Compel Deposition Testimony Under Rule 30(b)(6)
Roche is filing this document in the public record pursuant to paragraph 14 of the Protective Order. Amgen did not file a motion as to why the information is confidential trade secret material within the (4) Court day period of Roche's in camera submission, as required by paragraph 14. /s/ Keith E. Toms___________ 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] [e-mail]

Dated: April 20, 2007 Boston, Massachusetts

03099/00501 652200.2

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t is evident that these are only different anifestations of the same invention as acknowledged y Fritsch, et al. in their Motion Q herein," and I ill stop there. ased upon this particular statement was it mgen's position that the count that was at issue in his particular interference and the purified and solated DNA sequences in host cells that were at ssue in a District Court litigation were only ifferent manifestations of the same invention? R. FLOWERS: Objection; vague and

mbiguous, lacks foundation, outside the scope f the 30(b)(6) document. don't understand this document to say hat, no. hat do you understand that particular tatement to mean? understand it to mean that a -- well, irst of all, the quote is from Fritsch so it is sing Fritsch's words and it is saying that they are erived from consistent inventive actions. id you say derived from consistent -orry. an you read the answer back to me. Record read)

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3/29/2007 Watt, Stuart 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ay. sn't Amgen arguing the same position that ritsch acknowledged? R. FLOWERS: Same objections. erived from consistent inventive actions. et's take it one at a time. r. Watt, it does say that this statement as acknowledged by Fritsch, et al., but hasn't mgen actually adopted this statement by putting it s part of their summary of Dr. Lin's position for eference of this interference? R. FLOWERS: Objection; vague and

mbiguous, lacks foundation, outside the scope f 3C(b)(6) topics, and argumentative. don't think I would characterize it that

mgen is using Fritsch's position against ritsch, yes. es. And Amgen is using Fritsch's position

hat the count to be '097 and the DNA and host cell laims of the District Court litigation were ifferent manifestations of the same invention; sn't that. correct? R. FLOWERS: Objection; vague and

mbi g uous, lacks foundation, outside the scope f the 30(b)(6) topics.

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ell, the document says what it says and I hink I gave you my understanding. I was, you know, ot involved in its drafting, I was not there, and I an only tell you how I read the document today. ure. I believe that the words you had

sed is that this particular statement was onsistent, it is derived from consistent inventive ctions. Right? R. FLOWERS: Objection; mischaracterizes That's not what he said.

is prior testimony.

'm not certain that's what I said and now hat you repeat it back to me, I can understand this s not very clear in itself. nd I apologize, you know. It is not my ntention to mischaracterize your testimony, but erhaps I could ask you again, with respect to this articular statement on the top of Page 26 where mgen is stating "It is evident that these are only ifferent manifestations of the same invention," hat did Amgen mean when it said that? R. FLOWERS: Same objections.

ell, it is hard for me to give a meaning hen Amgen wrote the document or Amgen submitted the ocument -hat does it mean to you?

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kay.

So here Amgen is -- is it your

nderstanding that Amgen by this statement is saying hat the whole purpose of the claims of the '008 atent is to actually express and to make in vivo iologically active human EPO? R. FLOWERS: Objection; vague and It is also

mbiguous, lacks foundation.

utside of the 30(b)(6) document. see the words that you have called my ttention to. I'm not certain I can give them any

ore meaning other than just what they say. So if ou are asking me to interpret this, I'm not certain can add much to this. ou cannot add much to it? o. kay. don't think so. ell, let's try the next statement. It ays, "Stated otherwise, the process language of the in patent claims at issue in the litigation 'encoding human EPO') is, for all intents and urposes, a description of the present count," and top there. an you tell me what your understanding of his statement is?

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don't have much understanding of this, it oesn't make much sense to me because the process laims we:e not at issue in the litigation. hat's right. In fact, when it is talking

bout the litigation, it is talking about the '008 atent, correct? hat's what I understand it is referring Since I wasn't involved in drafting this it

ould be referring to something else, but I nderstand it to be referring to the District Court itigation on the '008 patent. hat's right. nd doesn't this statement indicate that mgen is arguing that the encoding human EPO anguage within the DNA and host cell claims of the 008 patent is for all intents and purposes a escription of the process for making recombinant PO that is the subject of the '097 interference? R. FLOWERS: Objection; vague and

mbiguous, lacks foundation, outside the scope f 30(b)(6) topics. Also appears to call for

r. Watt to formulate a legal opinion as he its here which I would instruct you not to do, r. Watt. would not understand the language to

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itting here today? R. FLOWERS: Objection; vague and

mbiguous, lacks foundation, outside the scope f the 30(b)(6). Also I would caution Mr. Watt

ot to formulate legal opinions on the spot. iven the factual record that was found in he District Court action, Lin was certainly the irst to clone the gene and the first to express the ecombinant EPO product. understand. But is that your

nderstanding of what this statement is saying? R. FLOWERS: Same objections.

ell, I understand the statement. Again, erhaps I should put in the qualifiers that we had ut in place with all these other statements that we ave been talking about that occurred prior to my oining Amgen, but -- so I'm looking at this from a erspective of years later as opposed to being nvolved at the time and understanding what the ntent was at the time. My understanding of this tatement is based on that factual record and I hink the District Court decision was cited and erhaps even submitted with this. So, yes, I think t is referring to those factual findings that were ncluded in the District Court decision.

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3/29/2007 Watt, Stuart 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 he '080 patent claims, either literally or under he doctrine of equivalence. ow does it meet it literally? ell, there's several limitations in the laim so it -- I probably can't recall all of them ut let me try. ure. Maybe I could short circuit this.

ith respect to the limitation that deals ith the 166 amino acid protein, is it your nderstanding that Roche's product meets that imitation? f Roche's product included EPO having 166 mino acids, even to a small degree, then it would e our position that it literally meets that imitation. oes Amgen have any evidence to date to uggest that Roche's MIRCERA product contains 166 mino acid protein? 'm not under the protective order so if mgen does or Amgen's counsel have that, then they ave not shared it with me. kay. ut I can -- without that knowledge, it ould be our assertion that if it did, that they ould literally cover, the claims would literally

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ssue, it is unknown if they will extend patent rotection beyond 2004." o you see that? A Q es, I do. an you tell me what your understanding of

hat particular statement is? R. FLOWERS: Objection; lacks foundation.

y understanding is that it is not a very ell informed statement. hat does that mean? hat means whoever wrote this did not nderstand patent law and I guess that's what -hat's what they're indicating by unknown because hey didn't know, but I certainly wouldn't agree ith the :statement if that's what you are asking me. R. SUH: Okay. All right. Subject to our

eservations that the additional 30(b)(6) opics were provided to us in too short of otice, I think that we're at the end of the epositions today. R. FLOWERS: Let me just take a couple

inutes, take a couple minutes to make sure hat we don't have any questions. R. SUH: Sure. HE VIDEOGRAPHER: Going off the record,

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