Case 1:18-cv-12029-ADB Document 270 Filed 02/18/22 Page 1 of 5
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`TEVA PHARMACEUTICALS
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`INTERNATIONAL GMBH and
`TEVA PHARMACEUTICALS USA, INC.,
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`Plaintiffs,
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`v.
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`ELI LILLY AND COMPANY,
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`Defendant.
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`Case No. 1:18-cv-12029-ADB
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`DEFENDANT ELI LILLY AND COMPANY’S
`MOTION FOR MODIFIED SUMMARY JUDGMENT BRIEFING LIMITS
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`Pursuant to Local Rule 7.1(b)(4), Defendant Eli Lilly and Company (“Lilly”) respectfully
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`moves for leave to file memoranda in support of two summary judgment motions in excess of the
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`page limits set forth by the Local Rules. Lilly intends to file, inter alia, a motion for summary
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`judgment that all of Teva’s asserted claims are invalid as a matter of law for lack of enablement,
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`and a motion for summary judgment that all of Teva’s asserted claims are invalid as a matter of
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`law for lack of written description. Either motion, if granted, would fully dispose of this case and
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`avoid a trial by jury. To ensure that these two modestly longer briefs do not unduly burden or
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`prejudice Plaintiffs Teva Pharmaceuticals International GmbH and Teva Pharmaceuticals USA,
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`Inc. (“Teva”), Lilly further requests that the Court grant reciprocal leave for Teva to file similarly
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`expanded opposition briefs to these two motions, and that the Court set a maximum page limit for
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`each round of briefing.1
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`1 As of the filing of this Motion, opening summary judgment and Daubert motions are due
`March 24, 2022; opposition briefs are due April 28, 2022; and reply briefs are due May 19, 2022
`(ECF Nos. 264, 265).
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`Case 1:18-cv-12029-ADB Document 270 Filed 02/18/22 Page 2 of 5
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`Each of Teva’s asserted claims (31 in total) contain a variety of broad functional
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`limitations. For its enablement motion, Lilly must analyze the broad limitations of each claim
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`under the binding precedent of In re Wands, 858 F.2d 731 (Fed. Cir. 1988), which sets forth a non-
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`exhaustive eight-factor test for undue experimentation. For its written description motion, Lilly
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`must review a significant body of recent Federal Circuit case law invalidating analogous antibody
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`claims on written description grounds. Lilly believes that a modest 10-page expansion of the 20-
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`page limit set forth in the Local Rules for opening and opposition briefs would aid the Court in
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`fully reviewing the potentially dispositive legal issues implicated by each of these two motions.2
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`Lilly approached Teva for the first time regarding these issues on January 27, 2022, in an
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`effort to present a joint motion to the Court to expand briefing page limits. Ex. A. Teva refused to
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`join such a motion, and “counter-proposed” the 20-page limit already provided by the Local Rules.
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`Ex. B. Lilly continued to pursue a compromise agreement on these issues over the next three
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`weeks, but the parties unfortunately reached an impasse on February 17, 2022. Ex. C.
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`Lilly’s requested relief would not prejudice Teva or burden the Court. This motion has
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`been brought promptly to the Court for resolution—within 24 hours of the parties reaching an
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`impasse and after nearly three weeks of conferring. See id. And unlike in this Court’s prior Astellas
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`case,3 where the movant sought leave on the eve of the summary judgment deadline, this motion
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`is being brought five weeks prior to the deadline for opening briefs, so there is no surprise or
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`prejudice to Teva. Lilly also proposes that Teva be given an equal number of pages for its
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`opposition briefs on the issues of enablement and written description, so Teva will be at no
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`2 Lilly respectfully requests that reply briefs for its proposed 30-page summary judgment briefs
`be set at 15 pages.
`3 See Order (ECF No. 124), Astellas Inst. for Regenerative Med. v. Imstem Biotech., Inc., No.
`1:17-cv-12239-ADB (D. Mass. Dec. 18, 2019); see also id., Opposition Brief (ECF No. 122) (D.
`Mass. Dec. 17, 2019).
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`2
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`Case 1:18-cv-12029-ADB Document 270 Filed 02/18/22 Page 3 of 5
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`disadvantage. As for the Court, Lilly’s proposal seeks to minimize and streamline the amount of
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`briefing that the Court would potentially need to review. Even with two briefs of 30 pages, the
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`total number of motions before the Court will necessarily be limited by the imposition of a 110-
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`page overall limit for each party in the first two rounds of briefing.4 In addition to providing
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`predictability to the parties and the Court, Lilly’s proposal would also provide the Court with the
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`benefit of full argument on two separate motions that could resolve this litigation.
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`Therefore, Lilly respectfully requests that the Court enter an order granting leave for Lilly
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`to file a 30-page Motion for Summary Judgment for Lack of Written Description and a 30-page
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`Motion for Summary Judgment for Lack of Enablement, with Teva granted leave to file 30-page
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`oppositions, and Lilly granted leave to file 15-page replies. Lilly further requests that the Court’s
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`Order also impose a 110-page limit on all briefs filed by the parties in the opening round of briefing
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`(excepting statements of fact and cover motions), a 110-page limit on all briefs filed by the parties
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`in the opposition round of briefing (excepting statements of fact), and a 55-page limit on all briefs
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`filed by the parties in the reply round of briefing (excepting statements of fact).
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`4 Any summary judgment or Daubert briefs other than the enablement and written description
`motions described above would remain subject to the Local Rules’ 20-page limit, and Lilly for
`its part would endeavor to come in under that limit for any further motions.
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`3
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`Case 1:18-cv-12029-ADB Document 270 Filed 02/18/22 Page 4 of 5
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`Dated: February 18, 2022
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`William B. Raich
`Danielle A. Duszczyszyn
`Denise Main
`Pier D. DeRoo
`Matthew Luneack
`Yoonjin Lee
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`901 New York Avenue, NW
`Washington, DC 20001-4413
`William.Raich@finnegan.com
`Danielle.Duszczyszyn@finnegan.com
`Denise.Main@finnegan.com
`Pier.DeRoo@finnegan.com
`Matthew.Luneack@finnegan.com
`Yoonjin.Lee@finnegan.com
`
`/s/Andrea L. Martin
`Andrea L. Martin (BBO 666117)
`BURNS & LEVINSON LLP
`125 High Street
`Boston, MA 02110-1624
`(617) 345-3000
`amartin@burnslev.com
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`Charles E. Lipsey
`Ryan O’Quinn
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`1875 Explorer Street
`Suite 800
`Reston, VA 20190-6023
`Charles.Lipsey@finnegan.com
`Oquinnr@finnegan.com
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`Emily R. Gabranski (BBO 694417)
`Marta Garcia Daneshvar
`Lulu Wang (BBO 704042)
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`2 Seaport Lane
`Boston, MA 02210-2001
`Emily.Gabranski@finnegan.com
`Marta.Garcia@finnegan.com
`Lulu.Wang@finnegan.com
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`Mark J. Stewart
`Sanjay M. Jivraj
`ELI LILLY AND COMPANY
`Lilly Corporate Center
`Indianapolis, IN 46285
`(317) 433-3495
`stewart_mark@lilly.com
`sjivraj@lilly.com
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`Attorneys for Defendant Eli Lilly & Company
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`4
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`Case 1:18-cv-12029-ADB Document 270 Filed 02/18/22 Page 5 of 5
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`LR 7.1(a)(2) CERTIFICATION
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`I, Andrea L. Martin, hereby certify that Lilly’s counsel met and conferred with Plaintiffs’
`counsel regarding this motion by telephone on January 26, 2022, February 3, 2022, and February
`15, 2022; and by email on January 27, 2022, February 1, 2022, February 2, 2022, February 4,
`2022, February 5, 2022, February 7, 2022, February 9, 2022, February 10, 2022, February 16,
`2022, and February 17, 2022. The parties agreed that they were at an impasse on this motion on
`February 17, 2022.
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`/s/Andrea L. Martin___________
`Andrea L. Martin, Esq.
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`CERTIFICATE OF SERVICE
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`I, Andrea L. Martin, hereby certify that this document filed through the ECF system will
`be sent electronically to the registered participants as identified on the Notice of Electronic Filing
`(NEF) and paper copies will be sent to those indicated as non-registered participants on February
`18, 2022.
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`/s/Andrea L. Martin ____________
`Andrea L. Martin, Esq.
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`4880-6486-5807.1
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