Tafas v. Dudas et al

Filing 103

MOTION for Leave to File Amicus Brief on the Issue of Retroactivity of the New Rules by American Intellectual Property Law Association. Associated Cases: 1:07-cv-00846-JCC-TRJ, 1:07-cv-01008-JCC-TRJ(O'Brien, Thomas)

Tafas v. Dudas et al

Doc. 103

Case 1:07-cv-00846-JCC-TRJ

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division TRIANTAFYLLOS TAFAS Plaint iff, v. JON. W. DUDAS, et al. Defendants. _____________________________ ) ) ) ) ) ) ) ) )

1:07cv846(JCC/TRJ)

CONSOLIDATED WITH _____________________________ SMITHKLINE BEECHAM CORPORATION, et al.) ) Plaint iffs, ) ) v. ) 1:07cv1008(JCC/TRJ) ) JON W. DUDAS, et al. ) ) Defendants. )

MOTION OF AMICUS CURIAE AMERICAN INTELLECTUAL PROPERTY LAW ASSOCIATION FOR LEAVE TO FILE A BRIEF ON THE ISSUE OF RETROACTIVITY OF THE NEW RULES The American Intellectual Property Law Association ("AIPLA") moves for leave to file its brief as amicus curiae explaining why the new Rules are impermissibly retroactive. AIPLA is a national association founded more than 100 years ago and is now comprised of more than 17,000 members interested in all areas of intellectual property law. AIPLA members include attorneys employed in private practice and by corporations, universities and government. AIPLA members represent both owners and users of intellectual property across

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the entire business spectrum, from very large corporations to individual inventors and in essentially all areas of technology. AIPLA has long been involved in advocacy of positions adopted by its Board of Directors as amicus curiae before the United States Court of Appeals for the Federal Circuit and the United States Supreme Court, as well as, on rare occasions, before state and federal district courts. AIPLA has also been a long-time leader in the area of professional development for members of the intellectual property community. The full scope and extent of the AIPLA's activities is contained in its website at www.aipla.org. AIPLA has no stake in any of the parties to this litigation or the results of this case, other than its interest in ensuring enacted regulations are consistent with applicable law. AIPLA wishes to submit a brief addressing how the retroactive impact of the new Rules will adversely impact inventors and innovation and thus should be declared void, but expresses no opinion on the prospective impact of the new Rules.. AIPLA believes it possesses special information and a unique perspective on this issue not otherwise available to the Court, because of, among other things, its long involvement and focus on patents and patent law, inputs routinely provided from many of its 17,000 members (a significant percentage of whom are patent practitioners) during meetings and throughout the year and its many co mmittees dealing with intellectual property law. AIPLA plans to file its brief by December 20, 2007 in accordance with the briefing schedule set by this Court. AIPLA is authorized to state that counsel for the GSK Plaintiffs in C.A. No. 1:07cv 1008 and for Mr. Tafas in C.A. No. 1:07cv846 have consented to the filing of this brief. Counsel for Defendants advised the undersigned that Defendants express no position on the instant motion. In light of the parties' views on this motion for leave, as well as the previous approval in this

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case of AIPLA's request to file an amicus brief in support of the GSK Plaintiffs' motion for preliminary injunctive relief, no hearing is requested on this motion for leave. Accompanying this motion is AIPLA's supporting memorandum which sets forth more fully the grounds for its request for leave. A proposed Order also is submitted herewith. WHEREFORE, for the reasons stated herein and for good cause shown, AIPLA requests that the Court grant its motion for leave to file its amicus brief in support of the Plaintiffs in these consolidated actions. Respect fully submitted, /s/ Thomas J. O'Brien (VSB 23628) MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W. Washington, D.C. 20004 Telephone: [phone] Fax: [phone] email: Of Counsel Jerry R. Selinger (pro hac vice) MORGAN, LEWIS & BOCKIUS, LLP 1717 Main Street, Suite 3200 Dallas, TX. 75201 ATTORNEYS FOR AMERICAN INTELLECTUAL PROPERTY LAW ASSOCIATION

James Pooley, President AMERICAN INTELLECTUAL PROPERTY LAW ASSOCIATION 241 18th Street, South, Suite 700 Arlington, VA. 22202

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CERTIFICATE OF SERVICE I hereby certify that on this 11th day of December 2007, the foregoing pleading was filed electronically using the CM/ECF system, which will send notification by electronic means to the following counsel of record: Joseph D. Wilson, Esq. Kelley Drye & Warren LLP 3050 K Street, NW, Suite 400 Washington, DC 20007-5108 email: [e-mail] Attorney for Plaintiff in C.A. No. 1:07cv846 Elizabeth M. Locke, Esq. Kirkland & Ellis LLP 655 15th Street, NW ­ Suite 1200 Washington, DC 20005 email: [e-mail] and Craig C. Reilly Esq. Richard McGettigan Reilly & West PC 1725 Duke Street ­ Suite 600 Alexandria, VA 22314 email: [e-mail] Attorneys for Plaintiffs in C.A. No. 1:07cv1008 (JCC/TRJ) Chuck Rosenberg United States Attorney Lauren A. Wetzler, Esq. R. Joseph Sher Andrew Price Assistant United States Attorneys United States Attorney's Office 2100 Jamison Ave. Alexandria, VA 22314 email: [e-mail] Attorneys for Defendants in C.A. Nos. 1:07cv846 and 1:07cv1008

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Rebecca Malkin Carr Pillsbury Wint hrop Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037 email: [e-mail] and Scott J. Pivnick Pillsbury Wint hrop Shaw Pittman LLP 1650 Tysons Boulevard McLean, VA 22102-4856 email: [e-mail] Attorneys for Amicus Elan Pharmaceuticals, Inc. James Murphy Dowd Wilmer Cutler Pickering Hale & Dorr, LLP 1455 Pennsylvania Avenue, NW Washington, DC 20004 email: [e-mail] Attorney for Amicus Pharmaceutical Research and Manufacturers of America Dawn-Marie Bey Kirkpatrick Stockton LLP 700 13th Street, NW Suite 800 Washington, DC 20005 email: [e-mail] Attorney for Amici Hexas, LLC, The Roskamp Institute and Tikvah Therapeutics, Inc. Randall Karl Miller Arno ld & Porter, LLP 1600 Tysons Boulevard Suite 900 McLean, VA 22102 email: [e-mail] Attorney for Amicus Biotechnology Industry Organization and Amicus Monsanto Company

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Charles Gorenstin Birch, Stewart, Kolasch and Birch, LLP 8110 Gatehouse Road Suite 100 East Falls Church, VA 22042 email: [e-mail] Attorney for Amicus Intellectual Property Institute Williams Mitchell College of Law

/s/ Thomas J. O'Brien (VA Bar 23628) Morgan Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W. Washington D.C. 20004 [phone] (phone) [phone] (fax) to'[e-mail] Attorneys for Amicus Curiae American Intellectual Property Law Association

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