Case 1:18-cv-00924-CFC-SRF Document 479-3 Filed 01/14/20 Page 1 of 5 PageID #: 33827
`Case 1:18-cv-00924—CFC-SRF Document 479-3 Filed 01/14/20 Page 1 of 5 PageID #: 33827
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`EXHIBIT C
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`EXHIBIT C
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`Case 1:18-cv-00924-CFC-SRF Document 479-3 Filed 01/14/20 Page 2 of 5 PageID #: 33828
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`IN THE UNITED STATES DISTRICT COURT
`IN AND FOR THE DISTRICT OF DELAWARE
`- - -
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`CIVIL ACTION
`
`NO. 17-1407 (CFC)
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`:::::::::
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`GENENTECH, INC., and CITY
`OF HOPE,
` Plaintiff,
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` vs.
`AMGEN INC.,
` Defendant
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` - - -
` Wilmington, Delaware
` Thursday, May 16, 2019
` 9:00 o'clock, a.m.
` - - -
`BEFORE: HONORABLE COLM F. CONNOLLY, U.S.D.C.J.
` - - -
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` Valerie J. Gunning
` Official Court Reporter
`
`1 of 46 sheets
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`Page 1 to 1 of 115
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`05/17/2019 02:37:55 PM
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`

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`Case 1:18-cv-00924-CFC-SRF Document 479-3 Filed 01/14/20 Page 3 of 5 PageID #: 33829
`1
`GENENTECH, INC. And CITY OF:
`CIVIL ACTION
`APPEARANCES (Continued):
`HOPE,
`
`:
`:
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`::
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` Plaintiffs,
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` Vs.
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`AMGEN INC.,
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` Defendant and
` Counterclaim
` Plaintiff
`---------------------------
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`GENENTECH, INC.,
`
` Plaintiff and
` Counterclaim
` Defendant,
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` VS.
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`SAMSUNG BIOEPSIS CO., LTD.,:
`:
`:
`:
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` Defendant and
` Counterclaim Plaintiff
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` - - -
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`1 2
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` COOLEY LLP
` BY: EAMONN GARDNER, ESQ.
` (San Francisco, California)
`
` -and-
`
` YOUNG CONAWAY STARGATT & GRECO, LLP.
` BY: MELANIE SHARP, ESQ. and.
` JAMES HIGGINS, ESQ.
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` Counsel for Defendant
` Amgen
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` SHAW KELLER LLP
` BY: NATHAN HOESCHEN, ESQ.
`
` -and-
`
` GOODWIN PROCTER
` BY: LINNEA CIPRIANO, ESQ.
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` Counsel for Defendants
` Teva and Celltrion
`
` HEYMAN ENERIO GATTUSO & HIRZEL LLP
` BY: DOMINICK T. GATTUSO, ESQ.
`
` -and-
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` WILLKIE, FARR & GALLAGHER
` BY: MICHAEL JOHNSON, ESQ.
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`NO. 18-00924 (CFC)
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`CIVIL ACTION
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`NO. 18-1363 (CFC)
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` Counsel for Defendants
` Pfizer and Hospira
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`APPEARANCES (Continued):
`
` DEVLIN LAW FIRM
` BY: JAMES LENNON, ESQ.
`
` -and-
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` RAKOCZY MOLINO MAZZOCHI SIWIK
` BY: LARA FITZSIMMONS, ESQ.
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` Counsel for Defendant
` Mylan
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`APPEARANCES:
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` McCARTER & ENGLISH, LLP
` BY: MICHAEL P. KELLY, ESQ.
`
` -and-
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` WILMER CUTLER PICKERING HALE AND DORR LLP
`BY: DAVID BERL, ESQ.,.
` ROBERT J. GUNTHER, JR., ESQ.,
` ANDREW DANFORD, ESQ.,
` TEGAN GREGORY, ESQ. and
` STEPHANIE LIN, ESQ.
` (New York, New York)
`
` -and-
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` DURIE TANGRI LLP
` BY: DURALYN J. DURIE, ESQ.
` (San Francisco, California)
`
` Counsel for Genentech, Inc. and City
` of Hope
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` SMITH, KATZENSTEIN & JENKINS
`BY: NEAL BELGAM, ESQ. and
` EVE ORMEROD, ESQ.
`
` -and-
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`COOLEY LLP
`BY: MICHELLE RHYU, ESQ.
` (Palo Alto, California)
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` -and-
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`05/17/2019 02:37:55 PM
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`Page 2 to 5 of 115
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`2 of 46 sheets
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`Case 1:18-cv-00924-CFC-SRF Document 479-3 Filed 01/14/20 Page 4 of 5 PageID #: 33830
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`been, proposed orders that have been submitted for guidance.
`All right.
`
`MS. KELLY: Thank you, Your Honor.
`THE COURT: Thank you, Mr. Kelly.
`And then I guess, let's see. Why don't we start
`with Mr. Belgam.
`MS. ORMEROD: Good morning, Your Honor.
`THE COURT: Oh, Ms. Ormerod.
`MS. ORMEROD: Eve Ormerod from Smith Katzenstein
`on behalf of Amgen in the 18-924 action, and today I'm
`joined by Michelle Rhyu and Eamonn Gardner from Cooley and
`Neal Belgam from Smith Katzenstein as well.
`THE COURT: All right. Great. And then let's
`see. We have Mr. Higgins?
`MR. HIGGINS: Yes. Good morning, Your Honor.
`THE COURT: Good morning.
`MR. HIGGINS: Jim Higgins from Young Conaway on
`behalf of Amgen in the 17-1407 case, and with me is Melanie
`Sharp also from Young Conaway.
`MS. SHARP: Good morning, Your Honor.
`THE COURT: And I guess that's all the
`defendants. Right? Accounted for, I believe?
`MR. HIGGINS: Correct.
`THE COURT: So then, Mr. Gattuso. There you
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`are. Okay.
`
` P R O C E E D I N G S
`
` (Proceedings commenced in the courtroom,
`beginning 9:00 a.m.)
`
`THE COURT: Good morning. Please be seated.
`All right. Mr. Kelly, good morning.
`MS. KELLY: Good morning, Your Honor. I
`apologize for that phone issue earlier this morning. That
`was actually a landline.
`THE COURT: Mr. Falgowski set you up.
`MS. KELLY: Yes. I think the Honorable
`Falgowski set me up. Thank you, Your Honor.
`THE COURT: Incidentally, just so the record is
`clear, I just got off the phone in another patent case
`Mr. Kelly was on. He couldn't be heard because he decided
`to make a phone call from within this building, which he now
`knows is not a good idea.
`MS. KELLY: I didn't want to be late for the
`Court because it was 9:30.
`THE COURT: All right.
`MS. KELLY: Anyway, it's always a pleasure, Your
`
`Honor.
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`I am hear on behalf of plaintiffs in the two
`consolidated cases, 17-1407, 18-924. And with me from
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`MR. GATTUSO: Good morning, Your Honor.
`Williams & Connolly a David Berl and Teegan Gregory and
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`Dominick Gattuso Heyman Enerio Gattuso & Hirzel on behalf of
`also Daralyn Durie, the Durie Tangri firm, and they're in
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`Pfizer and Hospira. I have with me Michael Johnson from
`17-14 -- sorry. 17-1407 and 18-924.
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`Willkie, Farr & Gallagher.
`Robert Gunther and Andrew an forth from Wilmer
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`THE COURT: Okay.
`Hale. Daralyn Durie as well. And who am I missing? Okay.
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`MR. GATTUSO: Thank you.
`And with Your Honor's permission, I guess Mr. Berl will be
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`THE COURT: Thank you. And Mr. Lennon.
`making the argument. Okay. Mr. Berl.
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`MR. LENNON: Good morning, Your Honor. Jim
`THE COURT: In both cases. Right? I just want
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`Lennon from the Devlin law firm on behalf of Mylan. With me
`to make sure. We're dealing with both consolidated cases.
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`is Lara Fitzsimmons from Rakoczy Molino.
`Is that right?
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`THE COURT: Good morning. And Mr. Hoeschen.
`MR. BERL: Just to be clear, I don't think the
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`MR. HOESCHEN: Good morning, Your Honor. Nathan
`cases are consolidated formally.
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`Hoeschen from Shaw Keller on behalf of Teva and Celltrion,
`THE COURT: Okay.
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`and with me is Linnea Cipriano from Goodwin Procter. And in
`MR. BERL: So to the --
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`the gallery is Lori chambers from Teva.
`THE COURT: Those two are not, but one of them,
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`THE COURT: All right.
`there are consolidated --
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`MS. CIPRIANO: Good morning, Your Honor.
`MR. BERL: Correct. We're arguing there. To
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`THE COURT: Is there anybody else that needs to
`the extent there are overlapping issues, I'm happy to
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`be identified? All right. Great.
`address them. If there are Herceptin-specific issues,
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`All right. What I would like to do is, I want
`Mr. Durie will address those.
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`to begin with the proposed order, which is docketed at
`THE COURT: Okay.
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`191-1. So this is the Herceptin order, is it. Correct?
`MS. KELLY: And we did file under both captions,
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`MR. BELGAM: It is, Your Honor.
`I apologize if we filed it inaccurately.
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`THE COURT: I just want to make sure. This is
`THE COURT: No need to apologize. We'll sort
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`through it. I'm going to be looking at the orders that have
`the proposed order that you all want me to sign?
`3 of 46 sheets
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`Case 1:18-cv-00924-CFC-SRF Document 479-3 Filed 01/14/20 Page 5 of 5 PageID #: 33831
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`trying to focus on the record in the case as to what the
`claims and defenses are in the same way Your Honor is
`looking at the form of order to decide what you have to
`decide. And what's in the complaint is a request for an
`injunction.
`
`THE COURT: I hear you.
`MR. BELGAM: Preliminary injunction. They've
`raised that.
`THE COURT: Okay.
`MR. BELGAM: They've sued us. I've got a trial
`in December. If Your Honor doesn't allow me to get access
`to those documents now, I will not have them for trial, and
`I will not have them to defend my client in whatever
`preliminary post-trial proceeding we have. And certainly
`there would be a laches problem that the plaintiff would
`have to deal with, and maybe Your Honor would be convinced
`at that point that, you know, because I didn't give them to
`Mr. Belgam in May, you know, I'm not going to put a
`preliminary injunction in place, but that's a big risk for a
`company to take.
`THE COURT: All right. I'm worried about time.
`So we've got launch dates as an issue.
`MR. BELGAM: Can I make one other point on
`launch date?
`THE COURT: Yes.
`
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`case. You know, what do we do with respect to this issue,
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`what expert do we hire, what's our position on commercial
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`success, how are we going to defends against the injunction.
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`These people are functioning as lawyers.
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`So in the case law where the Court has said,
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`let's not create two classes of outside counsel, right, the
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`settlement negotiator outside counsel and the litigation
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`outside counsel, I think that there's an analog for AmgenI think that there's an analog for Amgen
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`here and maybe it's their unique business structure, buthere and maybe it's their unique business structure, but
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`1010 what Your Honor would be doing would be forcing us to create
`what Your Honor would be doing would be forcing us to create
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`1111
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`in-house lawyers that are settlement only and in-housein-house lawyers that are settlement only and in-house
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`lawyers that are litigation only.lawyers that are litigation only.
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`And the point that we made at the end of our
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`letter was not that we were seeking the documents for the
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`purposes of settlement. That was sort of a gross leap, but
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`what we said was, if Your Honor draws that line for us,
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`these documents are so important to our people who are
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`running and working on these cases that we're probably going
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`to put the senior people who would otherwise be negotiating
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`on the litigation side, and then somebody else would have to
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`come in and do the settlement negotiation, and that might
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`have a chilling effect.
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`That was the point we were making. It was sort
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`of a non-argument. You know, they saw the word settlement
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`and they thought, Starfish wants tuna that tastes good, and
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`they saw --
`THE COURT: Well, I will test them on that. I
`didn't find it too compelling, so let me ask them.
`MR. BELGAM: All right.
`THE COURT: So anything else? You will get a
`chance to reply.
`MR. BELGAM: Yes. That's it's, Your Honor.
`THE COURT: All right.
`MR. BELGAM: Thank you.
`THE COURT: Go ahead, Mr. Berl. All right. Mr.
`Berl, you already agreed to produce the settlement
`agreement.
`MR. BERL: Not unredacted.
`THE COURT: I didn't say that. You agreed to
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`MR. BELGAM: The injunction part is really only
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`part of it. It's a critical term of the license, and as I
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`understand it, it's hard to understand how the patent has
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`been valued or treated by Genentech without that component.
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`In other words, the launch date reflects their perception of
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`which patents they are willing to --
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`THE COURT: See, the problem is, that just seems
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`so speculative to me. I mean, they're figuring a launch
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`date also based on the revenue that would follow. I mean,
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`their ability to launch.
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`MR. BELGAM: It's complicated.
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`THE COURT: Yes. I'm just worried about time.
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`MR. BELGAM: Sure.
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`THE COURT: What about access to the in-house
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`versus the outside counsel issue?
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`MR. BERL: Right. I think that's most of my
`MR. BELGAM: Yes. I think my argument on that
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`response today. If there is certain information that is
`is no different than the argument that was made by
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`relevant to the case and outweighs the risks, we're willing
`Mr. Higgins, so I won't belabor the point.
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`to produce that.
`I guess the only -- I don't know exactly how the
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`THE COURT: All right.
`case is staffed in the Avastin case, but I can tell Your
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`MR. BERL: For example, and I think this deals
`Honor that with respect to the Herceptin case, Amgen's model
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`with all the damages argument and all this commercial
`is a little different, so they have lawyers that are pro hac
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`success argument. The.
`vice admitted into this case who are at the hearings,
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`License fees or the royalties paid, if any, by
`they're at the depositions. They are making decisions,
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`critical decisions about, you know, how to proceed in the
`the counter parties, so if they pay zero percent or
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`produce it?
`
`