`
`M O R R I S , N I C H O L S , A R S H T & T U N N E L L L L P
`1201 NORTH MARKET STREET
`P.O. BOX 1347
`WILMINGTON, DELAWARE 19899-1347
`
`(302) 658-9200
`(302) 658-3989 FAX
`
`DEREK J. FAHNESTOCK
`(302) 351-9347
`dfahnestock@mnat.com
`
`
`
`December 19, 2018
`
`VIA ELECTRONIC FILING
`
`
`The Honorable Leonard P. Stark
`U.S. District Court
` for the District of Delaware
`844 North King Street
`Wilmington, DE 19801
`
`
`Re:
`
`
`
`Bayer HealthCare LLC, et al. v. Teva Pharmaceuticals USA, Inc., et al.,
`C.A. No. 16-1221 (LPS)(Consolidated)
`
`
`Bayer HealthCare LLC, et al. v. Apotex Inc., et al., C.A. No. 18-1465 (LPS)
`
`
`Dear Chief Judge Stark:
`
`
`We write on behalf of Plaintiffs Bayer HealthCare LLC and Bayer HealthCare
`Pharmaceuticals, Inc. (collectively, “Bayer”) and Defendants Apotex Inc. and Apotex Corp.
`(“Apotex”) concerning the above captioned cases.1 The parties respectfully request that Court
`consolidate the cases for all purposes, with a trial in November 2019 or shortly thereafter. A
`proposed Amended Scheduling and Consolidation Order is attached as Exhibit A.
`
`
`On December 16, 2016, and March 18, 2017, Bayer sued Apotex for infringement of U.S.
`Patent Nos. 8,637,553 (the “’553 patent”) and 9,458,107 (the “’107 patent”) in C.A. Nos. 16-
`1222 and 17-334, respectively. See C.A. No. 16-1222-LPS, D.I. 1; C.A. 17-334-LPS, D.I. 1.
`The Orange Book lists the ’553 and ’107 patents in connection with Bayer’s Stivarga® product.
`On December 12, 2017, the Court consolidated those cases with C.A. No. 16-1221. See C.A.
`No. 16-1221, D.I. 26. Trial in C.A. No. 16-1221 is scheduled to begin on June 10, 2019.
`
`
`On November 9, 2018, Bayer sued Apotex in a related case for infringement of U.S.
`Patent No. 9,957,232 (the “’232 patent”). See C.A. No. 18-1465-LPS, D.I. 1. The Orange Book
`also lists the ’232 patent in connection with Stivarga®.
`
`
`
`1 Teva Pharmaceuticals USA, Inc. (“Teva”), was formerly a party to C.A. No. 16-1221.
`However, Bayer and Teva settled and dismissed all claims and counterclaims against each other,
`leaving Apotex as the only remaining Defendant group. See D.I. 99.
`
`
`
`Case 1:18-cv-01465-LPS Document 11 Filed 12/19/18 Page 2 of 2 PageID #: 72
`The Honorable Leonard P. Stark
`December 19, 2018
`Page 2
`
`
`
`Given the inter-relationship between the two cases, the parties respectfully submit that it
`would be most efficient for the Court and the parties to consolidate C.A. Nos. 16-1221 and 18-
`1465 for all purposes, vacate the June 2019 trial date for C.A. No. 16-1221, and hold a single
`trial for the new consolidated action in November 2019 or shortly thereafter, as the Court’s
`calendar permits. The proposed Amended Scheduling and Consolidation Order includes the
`relevant deadlines.
`
`
`
`
`The parties are available to discuss further should the Court desire.
`
`Respectfully,
`
`/s/ Derek J. Fahnestock
`
`Derek J. Fahnestock (#3208)
`
`DJF:ncf
`Enclosure
`cc:
`Clerk of Court (by hand delivery)
`All Counsel of Record (by e-mail)
`
`
`
`
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