Tafas v. Dudas et al

Filing 85

Objection to Plaintiff Tafas Submitting Transcripts of Audio-Visual Clips filed by Jon Dudas, The United States Patent and Trademark Office. (Attachments: # 1 Exhibit 1)(Wetzler, Lauren)

Tafas v. Dudas et al

Doc. 85

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

Civil Action No. 1:07cv846(L) (JCC/TRJ)

CONSOLIDATED WITH SMITHKLINE BEECHAM CORPORATION, et al., Plaintiffs, v. JON W. DUDAS, et al., Defendants. ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 1:07cv1008 (JCC/TRJ)

OBJECTION TO PLAINTIFF TAFAS SUBMITTING TRANSCRIPTS OF AUDIO-VISUAL CLIPS Defendants Jon W. Dudas and the United States Patent and Trademark Office (collectively "USPTO") respectfully object to Plaintiff Triantafyllos Tafas being permitted to submit transcripts of audio and visual "clips" at tomorrow's hearing. The USPTO understands that the Court informed Tafas that he would not be allowed to play the clips, as requested in his e-mail to chambers at 2:12 p.m. today, but that he could submit transcripts of the clips along with affidavits certifying the transcripts' authenticity. See Ex. 1. The USPTO objects to Tafas being

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permitted to do so on the following grounds: 1. Lack of Notice: Although Tafas had previously provided the USPTO with the

video clips referenced in Tafas's e-mail to chambers, USPTO counsel have never before heard the audio clips. At the time of this filing, USPTO counsel still have not received these audio clips from Tafas counsel despite requesting them. Contrary to the Local Rules, Tafas counsel did not meet and confer with USPTO counsel before making his request to the Court so as to put the USPTO on notice of their intent to use these clips at the hearing. The USPTO is prejudiced by the lack of notice because it has not had an opportunity to consult with the purported speakers regarding these clips or to do any independent investigation of their authenticity. 2. Lack of Completeness: To date, Plaintiffs have failed to provide the full videos or

audio tapes of any of the clips they seek to use, or a transcript of the entire presentations. Therefore, the USPTO is unable to determine whether the clips Tafas has carefully selected have been taken out of context, or are otherwise inconsistent with other statements made in the presentations. Pursuant to Federal Rule of Evidence 106, the Court should not permit transcripts of only the selected clip. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171-72 (1988) ("Rule 106 of the Federal Rules of Evidence, which authorizes the introduction into evidence of the remainder of a writing when a part of the writing is introduced, is underlain by and constitutes a partial codification of the common-law doctrine of completeness, which addresses the concerns that a court not be misled because portions of a statement are taken out of context and that an out-of-context statement may create such prejudice that it is impossible to repair by a subsequent presentation of additional material."). 3. Lack of Authentication: While the Court is requiring Tafas counsel to authenticate

that the transcripts of the clips are accurate, Tafas has never established that the video tapes and 2

audio tapes from which the transcripts are being made are themselves authentic. Accordingly, the USPTO objects pursuant to Federal Rule of Civil Procedure 901. 4. Lack of Relevance: The material that Tafas seeks to introduce tomorrow is also

irrelevant under Federal Rule of Evidence 401 and 402. The video clips that undersigned counsel has seen regarding statements by former Solicitor and Deputy General Counsel John Whealan do not remotely suggest bad faith on the part of the USPTO. A showing of bad faith requires meeting an extremely high standard. See Defendants' Omnibus Memorandum in Opposition to Plaintiffs' Requests for Discovery Beyond the Administrative Record, Dkt. No. 83, pp. 10-11. Even if one were to understand the video clips, taken out of context, to mean what Tafas suggests they say ­ i.e. that "the PTO promulgated the rules at issue to change the patent system, tried to get the rules promulgated in an expedited fashion and designed the rules to dissuade patent applicants from submitting patent claims," Ex. 1 ­ none of these statements suggests that the USPTO acted in bad faith in promulgating rules aimed at improving the efficiency of the patent application process. The USPTO is unable to comment on the relevance of the audio clips because it has not heard them; however, the description Tafas counsel gave in his e-mail to Chambers strongly suggests that they, too, fail to evidence bad faith. See Ex. 1. For these reasons, the USPTO respectfully objects to the use of the referenced transcripts at tomorrow's hearing. In view of the short time frame that undersigned counsel had to write this objection, the USPTO respectfully reserves the right to object on any other grounds at tomorrow's hearing.

Respectfully submitted, CHUCK ROSENBERG UNITED STATES ATTORNEY 3

By:

/s/ Lauren A. Wetzler Ralph Andrew Price, Jr. R. Joseph Sher Assistant United States Attorneys Attorneys for All Defendants Justin W. Williams U.S. Attorney's Building 2100 Jamieson Avenue Alexandria, Virginia 22314 Tel: [phone] Fax: [phone] [e-mail]

OF COUNSEL: James A. Toupin General Counsel Stephen Walsh Acting Deputy General Counsel and Solicitor William Covey Deputy General Counsel William G. Jenks Janet A. Gongola William LaMarca Associate Solicitors Jennifer M. McDowell Associate Counsel United States Patent and Trademark Office

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CERTIFICATE OF SERVICE I hereby certify that on November 26, 2007, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the following: Joseph Dale Wilson, III Kelley Drye & Warren LLP Washington Harbour 3050 K Street NW Suite 400 Washington, DC 20007 Email: [e-mail] Joanna Elizabeth Baden-Mayer Collier Shannon & Scott PLLC 3050 K St NW Suite 400 Washington, DC 20007-5108 E-mail: [e-mail] Counsel for Plaintiff Triantafyllos Tafas, 1:07cv846 Elizabeth Marie Locke Kirkland & Ellis LLP 655 15th St NW Suite 1200 Washington, DC 20005 Email: [e-mail] Craig Crandell Reilly Richard McGettigan Reilly & West PC 1725 Duke St Suite 600 Alexandria, VA 22314 Email: [e-mail] Daniel Sean Trainor Kirkland & Ellis LLP 655 15th St NW Suite 1200 Washington, DC 20005 Email: [e-mail] Counsel for Plaintiffs SmithKline Beecham Corp. d/b/a GlaxoSmithKline, SmithKline Beecham 5

PLC, and Glaxo Group Limited, d/b/a GlaxoSmithKline 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 St 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 Putative Amicus Pharmaceutical Research and Manufacturers of America Randall Karl Miller Arnold & Porter LLP 1600 Tysons Blvd Suite 900 McLean, VA 22102 Email: [e-mail] Counsel for Putative Amicus Biotechnology Industry Organization Rebecca M. Carr Pillsbury Winthrop Shaw Pittman, LLP 2300 N Street, NW Washington, DC 20037 [e-mail] Scott J. Pivnick Pillsbury Winthrop Shaw Pittman 6

1650 Tysons Boulevard McLean, Virginia 22102-4856 [e-mail] Counsel for Amicus Elan Pharmaceuticals, Inc. /s/ LAUREN A. WETZLER Assistant United States Attorney Justin W. Williams U.S. Attorney's Building 2100 Jamieson Avenue Alexandria, Virginia 22314 Tel: [phone] Fax: [phone] [e-mail] Counsel for All Defendants

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