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Case 1:18-cv-00924-CFC Document 323 Filed 07/23/19 Page 1 of 4 PageID #: 25702
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`__________________________________________
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`GENENTECH, INC. and CITY OF HOPE
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`Plaintiffs,
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`v.
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`AMGEN INC.,
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`Defendant.
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`__________________________________________)
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`C.A. No. 18-924-CFC
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`STIPULATION AND [PROPOSED] ORDER OF DISMISSAL
`WITH RESPECT TO CERTAIN ASSERTED PATENTS AND CITY OF HOPE
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`WHEREAS Plaintiffs Genentech, Inc. and City of Hope filed a Second Amended
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`Complaint in this case on January 17, 2019, which asserts infringement of eighteen patents in
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`connection with Defendant Amgen Inc. seeking FDA approval of ABP 980 as a trastuzumab
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`biosimilar (D.I. 75);
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`WHEREAS Amgen has answered the Second Amended Complaint and asserted
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`counterclaims of non-infringement, invalidity, and/or unenforceability with respect to the
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`eighteen patents in the Second Amended Complaint (D.I. 80);
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`WHEREAS Plaintiffs have moved to dismiss Amgen’s unenforceability counterclaims
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`and strike Amgen’s Eleventh Affirmative Defense of unclean hands / inequitable conduct (D.I.
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`85); and
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`WHEREAS certain of the patents in the Second Amended Complaint have expired and,
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`in view of this stipulation, Plaintiffs are not seeking past damages for infringement of those
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`expired patents with respect to ABP 980;
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`ME1 31014142v.1
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`Case 1:18-cv-00924-CFC Document 323 Filed 07/23/19 Page 2 of 4 PageID #: 25703
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`NOW THEREFORE, it is hereby stipulated and agreed by the Parties, subject to the
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`approval of the Court, that:
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`1.
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`All claims for infringement of U.S. Patent Nos. 6,331,415, 7,923,221, 6,407,213,
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`6,417,335, 9,249,218, 6,121,428, and 6,620,918 (the “Dismissed Patents”) and (Counts I, II, III,
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`IX, X, XIV, and XV of the Second Amended Complaint (D.I. 75)) are dismissed with prejudice,
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`and all counterclaims for non-infringement, invalidity, and/or unenforceability of the Dismissed
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`Patents (Counts 1, 2, 3, 9, 10, 14, and 15 of Amgen’s Counterclaims (D.I. 80)) with respect to
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`ABP 980 are dismissed with prejudice;
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`2.
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`Amgen withdraws its Eleventh Affirmative Defense of unclean hands /
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`inequitable conduct as moot;
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`3.
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`Plaintiffs withdraw their motion to dismiss Amgen’s unenforceability
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`counterclaims and strike Amgen’s Eleventh Affirmative Defense with respect to Counts 1, 2, 3, 9,
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`10, 14, and 15 of Amgen’s Counterclaims and Amgen’s Eleventh Affirmative Defense (D.I. 85)
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`as moot. Plaintiffs’ motion to dismiss remains pending with respect to Amgen’s remaining
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`unenforceability counterclaims;
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`4.
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`5.
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`City of Hope is dismissed as a party to this case; and
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`Each party shall bear its own costs, expenses, and attorneys’ fees associated with
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`this action with respect to the Dismissed Patents.
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`This stipulation does not affect the parties’ claims, counterclaims, or defenses with
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`respect to the remaining patents-in-suit. This stipulation is for purposes of this case only and
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`does not extend to litigation involving any other product between the parties. Neither party shall
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`use this stipulation for any purpose in litigation between the parties relating to other products.
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`ME1 31014142v.1
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`Case 1:18-cv-00924-CFC Document 323 Filed 07/23/19 Page 3 of 4 PageID #: 25704
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`Dated: July 23, 2019
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`MCCARTER & ENGLISH, LLP
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`/s/ Daniel M. Silver
`Michael P. Kelly (#2295)
`Daniel M. Silver (#4758)
`Alexandra M. Joyce (#6423)
`Renaissance Centre
`405 North King Street, 8th Floor
`Wilmington, DE 19801
`(302) 984-6300
`mkelly@mccarter.com
`dsilver@mccarter.com
`ajoyce@mccarter.com
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`Of Counsel:
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`William F. Lee
`Lisa J. Pirozzolo
`Emily R. Whelan
`Kevin S. Prussia
`Andrew J. Danford
`WILMER CUTLER PICKERING
`HALE AND DORR LLP
`60 State Street
`Boston, MA 02109
`(617) 526-6000
`william.lee@wilmerhale.com
`lisa.pirozzolo@wilmerhale.com
`emily.whelan@wilmerhale.com
`kevin.prussia@wilmerhale.com
`andrew.danford@wilmerhale.com
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`Robert J. Gunther Jr.
`WILMER CUTLER PICKERING
`HALE AND DORR LLP
`7 World Trade Center
`250 Greenwich Street
`New York, NY 10007
`(212) 230-8800
`robert.gunther@wilmerhale.com
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`ME1 31014142v.1
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`SMITH KATZENSTEIN & JENKINS LLP
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`/s/ Eve H. Ormerod
`Neal C. Belgam (#2721)
`Eve H. Ormerod (#5369)
`1000 West Street, Suite 1501
`Wilmington, DE 19801
`(302) 652-8400
`nbelgam@skjlaw.com
`eormerod@skjlaw.com
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`Of Counsel:
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`Michelle Rhyu
`Susan Krumplitsch
`Daniel Knauss
`COOLEY LLP
`3175 Hanover Street
`Palo Alto, CA 94304-1130
`(650) 843-5287
`skrumplitsch@cooley.com
`mrhyu@cooley.com
`dknauss@cooley.com
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`Orion Armon
`COOLEY LLP
`380 Interlocken Crescent, Suite 900
`Broomfield, CO 80021-8023
`(720) 566-4119
`oarmon@cooley.com
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`Eamonn Gardner
`COOLEY LLP
`4401 Eastgate Mall
`San Diego, CA 92121-1909
`(858) 550-6086
`egardner@cooley.com
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`Case 1:18-cv-00924-CFC Document 323 Filed 07/23/19 Page 4 of 4 PageID #: 25705
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`Daralyn J. Durie
`Adam R. Brausa
`DURIE TANGRI LLP
`217 Leidesdorff St.
`San Francisco, CA 94111
`(415) 362-6666
`ddurie@durietangri.com
`abrausa@durietangri.com
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`Attorneys for Plaintiffs Genentech, Inc. and
`City of Hope
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`Lois Kwasigroch
`Nancy Gettel
`AMGEN INC.
`One Amgen Center Drive
`Thousand Oaks, CA 91320-1799
`(805) 447-1000
`loisk@amgen.com
`ngettel@amgen.com
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`Attorneys for Defendant Amgen Inc.
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`SO ORDERED this ________ day of _______________________, 2019.
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`_________________________________
` United States District Judge
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`ME1 31014142v.1
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