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

Filing 841

MOTION in Limine No. 8: Exclude Roche from Relying on Comparisons Between Roche's PEG-EPO Product and Amgen's ARANESP Product by Amgen Inc..(Gottfried, Michael)

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

Doc. 841

Case 1:05-cv-12237-WGY

Document 841

Filed 08/20/2007

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

Civil Action No. 05 CV 12237 WGY

PLAINTIFF AMGEN'S MOTION IN LIMINE NO. 8: EXCLUDE ROCHE FROM RELYING ON COMPARISONS BETWEEN ROCHE'S PEG-EPO PRODUCT AND AMGEN'S ARANESP® PRODUCT Pursuant to FRE 402 and 403, Plaintiff Amgen Inc. ("Amgen") requests that this Court preclude Defendants F. Hoffmann-La Roche Ltd., Roche Diagnostics GmbH, and Hoffmann-La Roche Inc. (collectively "Roche") from relying on evidence comparing Roche's accused peg-EPO product (CERA) and Amgen's Aranesp® product in support of Roche's noninfringement arguments. A comparison of Roche's and Amgen's products is irrelevant to the issue of patent infringement and likely to confuse the jury. Comparisons between Roche's pegEPO product and Amgen's Aranesp® product are inadmissible under FRE 402 because such comparisons are irrelevant and have no bearing on whether Roche's product infringes the asserted claims of the Lin patents. The only relevant comparison for an infringement analysis is between Roche's product and the claims of the Lin patents-insuit. Moreover, allowing Roche to present comparisons of its product and Amgen's product would serve only to mislead and confuse the jury. Because this evidence is

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Case 1:05-cv-12237-WGY

Document 841

Filed 08/20/2007

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irrelevant and likely to mislead and confuse the jury, this Court should exclude it under FRE 402 and 403. Amgen requests that this Court exclude comparisons of Roche's products and Amgen's products under FRE 402 and 403 because they are irrelevant to the issue of patent infringement and would serve only to mislead and confuse the jury. In support of this motion, Amgen submits a brief.

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Case 1:05-cv-12237-WGY

Document 841

Filed 08/20/2007

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Dated: August 20, 2007

Respectfully Submitted, AMGEN INC., By its attorneys, /s/ Michael R. Gottfried D.DENNIS ALLEGRETTI (BBO#545511) MICHAEL R.GOTTFRIED (BBO#542156) DUANE MORRIS LLP 470 Atlantic Avenue, Suite 500 Boston, MA 02210 Telephone: [phone] Facsimile: [phone] LLOYD R. DAY, JR DAY CASEBEER MADRID & BATCHELDER LLP 20300 Stevens Creek Boulevard, Suite 400 Cupertino, CA 95014 Telephone: [phone] Facsimile: [phone] WILLIAM GAEDE III McDERMOTT WILL & EMERY 3150 Porter Drive Palo Alto, CA 94304 Telephone: [phone] Facsimile: [phone] KEVIN M. FLOWERS MARSHALL, GERSTEIN & BORUN LLP 233 South Wacker Drive 6300 Sears Tower Chicago IL 60606 Telephone: [phone] Facsimile: [phone]

Of Counsel: STUART L. WATT WENDY A. WHITEFORD MONIQUE L. CORDRAY DARRELL G. DOTSON MARYSUSAN HOWARD KIMBERLIN L. MORLEY ERICA S. OLSON AMGEN INC. One Amgen Center Drive Thousand Oaks, CA 91320-1789 [phone]

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Document 841

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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 no agreement was reached. /s/ Michael R. Gottfried Michael R. Gottfried

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 nonregistered participants, on the above date. /s/ Michael R. Gottfried Michael R. Gottfried