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

Filing 544

MOTION for Summary Judgment of No Inequitable Conduct by Amgen Inc..(Gottfried, Michael)

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

Doc. 544

Case 1:05-cv-12237-WGY

Document 544

Filed 06/22/2007

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ) ) ) Plaintiff, ) ) v. ) ) F. HOFFMANN-LAROCHE ) LTD., a Swiss Company, ROCHE ) DIAGNOSTICS GmbH, a German ) Company and HOFFMANN LAROCHE ) INC., a New Jersey Corporation, ) ) Defendants. ) __________________________________________) AMGEN INC.,

Civil Action No.: 05-12237 WGY

AMGEN INC.'S MOTION FOR SUMMARY JUDGMENT OF NO INEQUITABLE CONDUCT

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Dockets.Justia.com

Case 1:05-cv-12237-WGY

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For the reasons set forth in its supporting Memorandum, filed herewith, Plaintiff Amgen Inc. ("Amgen") respectfully submits this Motion For Summary Judgment of No Inequitable Conduct. In particular, Amgen respectfully requests that the Court grant summary judgment in Amgen's favor that: (1) Amgen did not commit inequitable conduct by omitting material information relating to purported similarities between r-EPO and uEPO during the prosecution of U.S. Patent No. 5,547,933 ("'933 Patent"), as alleged in paragraphs 74-88 of Defendants' First Amended Answer and Counterclaims, filed March 30, 2007 ("Amended Answer"), on the grounds set forth in the accompanying Memorandum, including that the allegedly withheld information was disclosed to the Patent Office, was not material and/or was cumulative of information already before the Patent Office; (2) Amgen did not commit inequitable conduct in making legal arguments or alleged material omissions regarding purported double patenting during the prosecution of the `179 application, as alleged in paragraphs 43-53 of Defendants' Amended Answer, on the grounds set forth in the accompanying Memorandum, including that Amgen's legal arguments were correct, and the alleged omissions are not material. (3) Amgen did not commit inequitable conduct during the prosecution of the `178 and `179 applications, by withholding the fact of or bases for the examiners' rejections of any substantially similar claims in the `178 and `179 applications, as alleged in paragraphs 54-73 of Defendants' Amended Answer, on the grounds set forth in the accompanying Memorandum, including that all previous rejections and the bases therefor were before the single examiner who became responsible for the examination of both applications prior to the issuance of the patents-in-suit.

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 Amgen Inc.'s Motion For Summary Judgment of No Inequitable Conduct. No agreement could be reached. /s/ Michael R. Gottfried Michael R. Gottfried

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Request for Oral Argument Amgen respectfully requests that the Court hear oral argument regarding this motion. Respectfully Submitted, AMGEN INC., By its attorneys, /s/ Michael R. Gottfried D. DENNIS ALLEGRETTI (BBO#545511) MICHAEL R. GOTTFRIED (BBO#542156) PATRICIA R. RICH (BB#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 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] June 22, 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]

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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 on-registered participants.

/s/ Michael R. Gottfried Michael R. Gottfried

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