Tafas v. Dudas et al

Filing 86

MOTION of Amicus Curiae Monsanto Company for Leave to File a Brief in Support of Plaintiffs' Anticipated Motions For Summary Judgment by Monsanto Company. (Attachments: # 1 Proposed Order)(Miller, Randall) Modified text on 11/28/2007 (klau, ). (called counsel to notice) Modified on 12/3/2007 to reflect that this is a consent motion per counsel (klau, ).

Tafas v. Dudas et al

Doc. 86

IN THE UNITED STATES DISTRICT COURT FOR THE 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., Plaintiffs, v. JON W. DUDAS, et al., Defendants. ) ) ) ) ) ) ) ) ) ) )

Case No. 1:07cv1008 (JCC/TRJ)

MOTION OF AMICUS CURIAE MONSANTO COMPANY FOR LEAVE TO FILE A BRIEF IN SUPPORT OF THE PLAINTIFFS' ANTICIPATED MOTIONS FOR SUMMARY JUDGMENT Monsanto Company ("Monsanto"), 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's anticipated motions for summary judgment. Monsanto, along with its subsidiaries, is a leading global provider of agricultural products for farmers. The seeds, biotechnology trait products, and herbicides that Monsanto researches,

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develops, and brings to market provide farmers with solutions that improve productivity, reduce the costs of farming, produce better feed for animals, and produce better foods for consumers. Monsanto spends over $2 million per day in research and development to support and improve its businesses. Patents are a critical component of Monsanto's research and development activities and a significant factor in Monsanto's willingness to devote such substantial resources to these activities. Monsanto's amicus brief would address the balance of hardships and the public interest prongs of the plaintiffs' requests for injunctions permanently enjoining the implementation of the Patent and Trademark Office'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) [hereinafter "Final Rules"] (to be codified at 37 C.F.R. pt. 1). In particular, Monsanto will address the effects of those portions of the Final Rules related to limiting applicants to five independent claims and twenty-five total claims unless the applicant files an "examination support document" ("ESD"), not only on patent applications and patent prosecution, but also in subsequent proceedings, such as litigation, related to affected patents. Monsanto has no stake in any of the plaintiffs in this case. Monsanto seeks leave to participate as an amicus based upon its interest in avoiding changes to the patent rules, particularly those described above, that will irreparably harm its business, the biotechnology industry generally, and the public. Monsanto is aware that Defendants' Motion for Issuance of Proposed Briefing Schedule in Lieu of a Standard Initial Scheduling Order, Dkt. No. 60, is currently pending and that the hearing on this motion has been continued until November 27, 2007, Minute Entry, Dkt. No. 68. If Monsanto's motion for leave is granted, it requests that its amicus brief be due one week after

plaintiffs' motions for summary judgment are due. Although Monsanto believes that one week between the filing of the plaintiffs' summary judgment motions and the filing of amicus briefs in support of plaintiffs' motions is appropriate, it will abide by and not object to the due date for amicus briefs in support of the plaintiffs' summary judgment motions as provided in the schedule that will be entered by the Court. Counsel for the GSK Plaintiffs has consented to the filing of this motion. Counsel for Mr. Tafas has consented to the filing of this motion, except, at this juncture, he takes no position with respect to Monsanto's request for a due date one week after the due date for plaintiffs' motions for summary judgment. The defendants take no position on this motion. However, all parties agree that the motion should be decided without oral argument. WHEREFORE, for the reasons stated herein and in its accompanying memorandum in support, Monsanto respectfully requests the Court to grant it leave to file an amicus brief in support of the plaintiffs' anticipated summary judgment motions in accordance with the briefing schedule to be entered by the Court. Respectfully submitted, By: /s/ Randall K. Miller VA Bar #70672 Counsel for Amicus Curiae Monsanto Company ARNOLD & PORTER LLP 1600 Tysons Boulevard Suite 900 McLean, VA 22102 Telephone: [phone] Facsimile: [phone] [e-mail]

Of Counsel for Amicus Curiae Monsanto Company: Ronald A. Schechter David R. Marsh Matthew M. Shultz

ARNOLD & PORTER LLP 555 12th Street, N.W. Washington, D.C. 20004 Telephone: [phone] Facsimile: [phone]

ATTORNEYS FOR AMICUS CURIAE MONSANTO COMPANY November 26, 2007

CERTIFICATE OF SERVICE I hereby certify that on this 26th day of November 2007, I caused a copy of the foregoing Motion of Amicus Curiae Monsanto Company for Leave to File a Brief in Support of the Plaintiffs' Anticipated Motions for Summary Judgment and accompanying proposed order 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] Craig C. Reilly Richard McGettigan Reilly & West PC 1725 Duke Street - Suite 600 Alexandria, VA 22314 Email: [e-mail] Daniel S. Trainor Kirkland & Ellis LLP 655 15th Street, NW - Suite 1200 Washington, DC 20005 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] Joanna Elizabeth Baden-Mayer Collier Shannon & Scott 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 Jamieson Ave.

Alexandria, VA 22314 Email: [e-mail] Counsel for Defendants 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 Counsel for Amici Hexas, LLC, The Roskamp Institute, Tikvah Therapeutics, Inc. James Murphy Dowd Wilmer Cutler Pickering Hale & Dorr LLP 1455 Pennsylvania Ave., NW Washington, DC 20004 Counsel for Putative Amicus Pharmaceutical Research and Manufacturers of America Rebecca M. Carr Pillsbury Winthrop Shaw Pittman, LLP 2300 N Street, NW Washington, DC 20037 Email: [e-mail] Scott J. Pivnick Pillsbury Winthrop Shaw Pittman, LLP 1650 Tysons Boulevard McLean, VA 22102 Email: [e-mail] Counsel for Amicus Elan Pharmaceuticals, Inc.

/s/ Randall K. Miller VA Bar #70672

Counsel for Amicus Curiae Monsanto Company ARNOLD & PORTER LLP 1600 Tysons Boulevard Suite 900 McLean, VA 22102 Telephone: [phone] Facsimile: [phone] [e-mail]