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

Filing 425

MOTION to Strike Infringement Allegations in Amgen's Expert Reports on which Amgen did not Provide Discovery and to Preclude Testimony by F. Hoffmann-LaRoche LTD, Roche Diagnostics GmbH, Hoffmann LaRoche Inc..(Toms, Keith)

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

Doc. 425

Case 1:05-cv-12237-WGY

Document 425

Filed 04/30/2007

Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS AMGEN INC., Plaintiff, v. F. HOFFMANN-LA ROCHE LTD, ROCHE DIAGNOSTICS GmbH, and HOFFMANNLA ROCHE INC., Defendants. ) ) ) ) Civil Action No.: 05 Civ. 12237 WGY ) ) ) ) ) ) )

DEFENDANTS' MOTION TO STRIKE INFRINGEMENT ALLEGATIONS IN AMGEN'S EXPERT REPORTS ON WHICH AMGEN DID NOT PROVIDE DISCOVERY AND TO PRECLUDE TESTIMONY Defendants F. Hoffmann-La Roche Ltd, Roche Diagnostics GmbH, and Hoffmann-La Roche Inc. (collectively "Roche") respectfully submit this motion to strike portions of the expert reports of Drs. Lodish, Torchilin, and Katre that relate to the predictability and complexity of chemical reactions of compounds other than EPO through pegylation, and to preclude Amgen's experts from offering such opinions and testimony at trial. Amgen previously argued, and then persuaded the Court to rule, that pegylation with non-EPO molecules was not relevant to this litigation. Amgen used that position and ruling to deny Roche any discovery into Amgen's own acknowledged work and experience regarding chemical reactions of compounds other than EPO through pegylation. That work, Roche contends, would be contrary to and belie the opinions now offered by its experts. Now after Roche has been denied discovery into these topics, Amgen seeks to introduce expert testimony to support its infringement allegations that relies on precisely the information that it once claimed irrelevant. Amgen's earlier position on this topic should preclude it from

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Case 1:05-cv-12237-WGY

Document 425

Filed 04/30/2007

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offering testimony on the application of pegylation to non-EPO molecules, especially since Roche has been prejudiced by being denied the discovery it required to develop evidence (which is indisputably in Amgen's position) to rebut Amgen's contentions. Thus, Roche respectfully requests that the following paragraphs of the expert reports of Drs. Lodish, Torchilin, and Katre, which relate to pegylation involving non-EPO molecules, be stricken, and Amgen's experts not be permitted to testify on these topics at trial: Expert Report Paragraphs to be Stricken Harvey F. Lodish 62, 184 Vladimir P. Torchilin Nandini Katre 28, 30, 32, 33, 65, 73, 78, 82-89, 91, 95, 96, 109-111 3-5, 16-18, 29-30, 39-40

In support of this motion, Roche submits a memorandum of law and the Declaration of Alfred H. Heckel. CERTIFICATE PURSUANT TO LOCAL RULE 7.1 I certify that counsel for the parties have conferred in an attempt to resolve or narrow the issues presented by this motion and that no agreement could be reached.

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Case 1:05-cv-12237-WGY

Document 425

Filed 04/30/2007

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Dated: April 30, 2007 Boston, Massachusetts

Respectfully submitted, F. HOFFMANN-LA ROCHE LTD, ROCHE DIAGNOSTICS GMBH, and HOFFMANN-LA ROCHE INC. By their Attorneys /s/ Keith E. Toms Lee Carl Bromberg (BBO# 058480) Robert L. Kann (BBO# 258025) 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] 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) Peter Fratangelo (BBO# 639775) Vladimir Drozdoff (pro hac vice) David L. Cousineau (pro hac vice) KAYE SCHOLER LLP 425 Park Avenue New York, New York 10022 Tel. [phone] 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) and paper copies will be sent to those indicated as non registered participants on the above date. /s/ Keith E. Toms

3099/501 659383.1

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