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

Filing 445

MOTION to Amend Its Answer To Amplify Allegations Of Amgen's Inequitable Conduct And To Define Relevant Markets For Purposes Of Antitrust Counterclaims by F. Hoffmann-LaRoche LTD, Roche Diagnostics GmbH, Hoffmann LaRoche Inc.. (Attachments: #1 Exhibit A)(Toms, Keith)

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

Doc. 445

Case 1:05-cv-12237-WGY

Document 445

Filed 05/23/2007

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 ) ) ) ) ) ) )

ROCHE'S MOTION FOR LEAVE TO AMEND ITS ANSWER TO AMPLIFY ALLEGATIONS OF AMGEN'S INEQUITABLE CONDUCT AND TO DEFINE RELEVANT MARKETS FOR PURPOSES OF ANTITRUST COUNTERCLAIMS Defendants F. Hoffmann-La Roche Ltd, Roche Diagnostics GmbH, and Hoffmann-La Roche Inc. (collectively "Roche") submit this motion seeking leave to amend their answer to include additional allegations of Amgen's inequitable conduct during the prosecution of its asserted patents, and to define relevant markets so as to conform Roche's antitrust counterclaims to the evidence. The proposed amended answer, redlined to show added material, is attached as Exhibit A. Roche's proposed amendment would amplify its previously alleged inequitable conduct defense and antitrust counterclaims based on new facts obtained during discovery. As every factual allegation to be added has been disclosed to Amgen in complete detail as the supporting facts became known to Roche during discovery and/or in expert reports, Amgen cannot in good faith claim surprise and would not be prejudiced by having Roche's allegations set forth in an amended pleading.

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Case 1:05-cv-12237-WGY

Document 445

Filed 05/23/2007

Page 2 of 3

Thus, Roche respectfully asks this Court for leave to amend its answer to include additional allegations of Amgen's inequitable conduct and to better define markets relevant to the antitrust counterclaims. In support of this motion, Roche submits the accompanying memorandum of law. 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. /s/ Keith E. Toms__ Keith E. Toms Dated: May 23, 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]

Case 1:05-cv-12237-WGY

Document 445

Filed 05/23/2007

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) and paper copies will be sent to those indicated as non registered participants on the above date. /s/ Keith E. Toms Keith E. Toms
03099/00501 663524.1

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