Tafas v. Dudas et al

Filing 136

First MOTION for Leave to File BRIEF IN SUPPORT OF THE PLAINTIFFS ANTICIPATED MOTIONS FOR SUMMARY JUDGMENT by Fdration Internationale Des Conseils En Proprit Industrielle. (Attachments: # 1 Proposed Order)(Molino, Timothy)

Tafas v. Dudas et al

Doc. 136

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

Document 136

Filed 12/20/2007

Page 1 of 7

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Alexandria Division TRIANTAFYLLOS TAFAS Plaintiff, v. JON W. DUDAS, ET AL., Defendants. Case No. 1:07cv846 (JCC/TRJ)

CONSOLIDATED WITH SMITHKLINE BEECHAM CORPORATION, et al., Plaintiff, v. JON W. DUDAS, ET AL., Defendants. MOTION OF AMICUS CURIAE FÉDÉRATION INTERNATIONALE DES CONSEILS EN PROPRIÉTÉ INDUSTRIELLE FOR LEAVE TO FILE A BRIEF IN SUPPORT OF THE PLAINTIFFS' ANTICIPATED MOTIONS FOR SUMMARY JUDGMENT Fédération Internationale Des Conseils En Propriété Industrielle ("FICPI"), by undersigned counsel, moves for leave to file a brief as amicus curiae in support of plaintiffs SmithKline Beecham Corporation, SmithKline Beecham PLC, and Glaxo Group Limited's (collectively referred to as the "GSK Plaintiffs") and plaintiff Triantafyllos Tafas' anticipated motions for summary judgment. No oral argument is requested. Case No. 1:07cv1008 (JCC/TRJ)

Dockets.Justia.com

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

Document 136

Filed 12/20/2007

Page 2 of 7

The GSK Plaintiffs, by their counsel of record, have consented to the filing of this motion and FICPI's appearance as an amicus. The defendants have expressly declined to take a position, but agree that no hearing is necessary to decide this motion. FICPI requests that this motion be granted and its amicus brief be due in accordance with the briefing schedule as set by the proceedings in this matter. I. INTEREST OF THE AMICUS CURIAE Established in 1906, FICPI is a Switzerland-based international and non-political association of approximately 4,000 intellectual property attorneys from over eighty countries (including the United States). FICPI's members represent individual inventors as well as large, medium and small companies. One of the members' major roles is to advise inventors in intellectual property matters and secure protection for industrial innovation. FICPI supports predictable, balanced global protection of patents, the global harmonization of substantive patent law, and the interests of inventors and the U.S. Patent and Trademark Office ("the PTO") for recognizing a fair scope of patent protection consistent with the claimed invention. FICPI is one of only two major world organizations that advises the World Intellectual Property Organization ("WIPO"), an intergovernmental organization dedicated to promoting and protecting intellectual property rights worldwide, on all intellectual property matters. In this capacity, FICPI members have attended Diplomatic Conferences concerning international intellectual property treaties and practices. WIPO's 180 member states (including the United States) comprise almost ninety percent of the world's countries. See About WIPO, at http://www.wipo.int/about-wipo/en/. As one of the sixteen specialized agencies of the United Nations system of organizations, WIPO administers intellectual property matters recognized by the U.N.'s member states and twenty-three international treaties concerning intellectual property.

2

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

Document 136

Filed 12/20/2007

Page 3 of 7

See id. The United States is a member of the WIPO Standing Committee on the Law of Patents ("SCP") and is involved with WIPO's efforts to harmonize substantive patent law worldwide, including pursuant to a Substantive Patent Law Treaty, which currently is in draft form.1 II. WHY AN AMICUS BRIEF IS DESIRABLE AND WHY THE MATTERS ASSERTED ARE RELEVANT TO THE DISPOSITION OF THE CASE As FICPI is largely comprised of patent practitioners representing foreign inventors and corporate entities, FICPI is poised to give the court the perspective of the international patent community. Because the instant case may potentially significantly affect the way foreign companies operate vis-à-vis their patent filing strategies, FICPI would like to voice concerns regarding the threat posed by PTO's Final Rules, published on August 21, 2007, Changes to Practice for Continued Examination Filings, Patent Applications Containing

Patentably Indistinct Claims and Examination of claims in Patent Applications, 72 Fed. Reg. 46,716 (Aug. 21, 2007), and, in particular, Rule 1.78 regarding divisional practice. In November 2007, FICPI, assembled at its Executive Committee in Seville, Spain, adopted a Resolution regarding Divisional Patent Applications.2 As amicus curiae, FICPI's positions would address the issue of the PTO's final rules on the divisional applications registration process and their general impact on the United States patent system.

See Substantive Patent Law Harmonization, at http://www.wipo.int/patent/law/en/harmonization.htm.
2

1

FICPI, EXCO/ES07/RES/003, November 4-7, 2007.

3

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

Document 136

Filed 12/20/2007

Page 4 of 7

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

Document 136

Filed 12/20/2007

Page 5 of 7

CERTIFICATE OF SERVICE I hereby certify that on this 20th day of December 2007, I caused a copy of the foregoing MOTION OF AMICUS CURIAE FÉDÉRATION INTERNATIONALE DES CONSEILS EN PROPRIÉTÉ INDUSTRIELLE FOR LEAVE TO FILE A BRIEF IN SUPPORT OF THE PLAINTIFFS' ANTICIPATED MOTIONS FOR SUMMARY JUDGMENT to be electronically filed with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing to the following: Elizabeth M. Locke Kirkland & Ellis LLP 655 15th Street, NW Suite 1200 Washington, DC 20005 Email: [e-mail] and Craig C. Reilly Richard McGettigan Reilly & West PC 1725 Duke Street Suite 600 Alexandria, VA 22314 Email: [e-mail] Counsel for GSK Plaintiffs Joseph Dale Wilson, III Kelley Drye & Warren LLP Washington Harbour 3050 K Street NW Suite 400 Washington, DC 20007 Email: [e-mail] Counsel for Plaintiff Tafas Lauren A. Wetzler United States Attorney's Office 2100 Jamison Ave. Alexandria, VA 22314 Email: [e-mail] Counsel for the Defendants

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

Document 136

Filed 12/20/2007

Page 6 of 7

Thomas J. O'Brien Morgan, Lewis & Bockius 1111 Pennsylvania Ave., NW Washington, DC 20004 Email: to'[e-mail] Counsel for Amicus American Intellectual Property Lawyers Association Dawn-Marie Bey Kilpatrick Stockton, LLP 700 13th Street, NW, Suite 800 Washington, DC 20005 Email: [e-mail] Counsel for Amicus Hexas, LLC, The Roskamp Institute, Tikvah Therapeutics, Inc. James Murphy Dowd Wilmer Cutler Pickering Hale & Dorr LLP 1455 Pennsylvania Ave., NW Washington, DC 20004 Email: [e-mail] Counsel for Amicus Pharmaceutical Research and Manufactures of America Rebecca Malkin Carr Pillsbury Winthrop Shaw Pittman LLP 2300 N St NW Washington, DC 20037 Email: [e-mail] and Scott Jeffrey Pivnick Pillsbury Winthrop Shaw Pittman LLP 1650 Tysons Blvd, Suite 400 McLean, VA 22102 Email: [e-mail] Counsel for Amicus Elan Pharmaceuticals, Inc.

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

Document 136

Filed 12/20/2007

Page 7 of 7

Randall Karl Miller Arnold & Porter LLP 1600 Tysons Blvd., Suite 900 McLean, VA 22102 Email: [e-mail] Counsel for Amicus Monsanto Company Charles Gorenstein Michael K. Mutter Birch, Stewart, Kolasch and Birch, LLP 8110 Gatehouse Rd., Suite 100 East Falls Church, Virginia 22042 Email: [e-mail] Counsel for Amicus Intellectual Property Institute of the William Mitchell College of Law Robert E. Scully Jr. Stites & Harbison PLLC 1199 North Fairfax Street, Suite 900 Alexandria, Virginia 22314 Email: [e-mail] Counsel for Amicus Human Genome Sciences, Inc.

By:_________ /s/___________________ Timothy A Molino (VSB# #45673) Bingham McCutchen LLP 2020 K Street NW Washington, DC 20006-1806 [phone]