Case 1:18-cv-12029-ADB Document 29 Filed 12/21/18 Page 1 of 16
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`TEVA PHARMACEUTICALS
`
`INTERNATIONAL GMBH and
`TEVA PHARMACEUTICALS USA, INC.
`
`Plaintiffs,
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`v.
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`ELI LILLY AND COMPANY
`
`Defendant.
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`Case No. 1:18-cv-12029-ADB
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`DEFENDANT ELI LILLY AND COMPANY’S REPLY
`IN SUPPORT OF ITS MOTION TO TRANSFER, OR, IF NOT TRANSFERRED,
`THEN TO STAY THIS LITIGATION PENDING INTER PARTES REVIEW
`[Leave to file granted on December 13, 2018]
`
`

`

`Case 1:18-cv-12029-ADB Document 29 Filed 12/21/18 Page 2 of 16
`
`TABLE OF CONTENTS
`
`I.
`
`II.
`
`Introduction ......................................................................................................................... 1
`
`Both the Public and Private Interest Factors Favor Transfer .............................................. 2
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`The Court Should Give Little or No Weight to Teva’s Choice of
`Forum ...................................................................................................................... 2
`
`The Convenience of the Parties Favors Transfer to Indiana ................................... 2
`
`Indiana Is More Convenient for the Expected Witnesses ....................................... 3
`
`Teva Overstates the Role, and Relevance, of Arteaus Therapeutics ...................... 4
`
`Teva Fails to Establish Any Other Connection to Massachusetts .......................... 6
`
`Teva Ignores the Substantial Connections Between Indiana and This
`Case ......................................................................................................................... 6
`
`III.
`
`A Stay Pending Inter Partes Review Is Warranted ............................................................ 7
`
`A.
`
`B.
`
`C.
`
`D.
`
`Lilly’s Stay Motion Is Ripe..................................................................................... 7
`
`Teva Will Suffer No Undue Prejudice or Tactical Disadvantage
`from a Stay .............................................................................................................. 7
`
`A Stay Will Simplify the Issues in This Case ......................................................... 9
`
`The Early Stage of this Litigation Strongly Favors a Stay ................................... 10
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`IV.
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`Conclusion ........................................................................................................................ 10
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`i
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`

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`Case 1:18-cv-12029-ADB Document 29 Filed 12/21/18 Page 3 of 16
`
`Cases
`
`TABLE OF AUTHORITIES
`
`ACQIS v. EMC Corp.,
`109 F. Supp. 3d 352 (D. Mass. 2015) (“ACQIS I”) ............................................................ 9, 10
`
`ACQIS, LLC v. EMC Corp.,
`2016 WL 4250245 (D. Mass. Aug. 10, 2016) (“ACQIS II”) .................................................... 8
`
`Baxter Int’l, Inc. v. Becton, Dickinson & Co.,
`No. 1:17-cv-07576 (N.D. Ill. Nov. 26, 2018) ........................................................................... 7
`
`Blephex LLC v. Pain Point Med. Sys. Inc,
`2016 WL 7839343 (N.D. Tex. Nov. 3, 2016) ........................................................................... 7
`
`Cypress Semiconductor Corp. v. LG Elecs., Inc.,
`2015 WL 3453780 (N.D. Cal. Oct. 29, 2014)........................................................................... 7
`
`Depianti v. Jan-Pro Franchising Int’l, Inc.,
`2016 WL 4771056 (D. Mass. Sept. 13, 2016) .......................................................................... 4
`
`Fed. Ins. Co. v. XTRA Intermodal, Inc.,
`2015 WL 4275181 (D. Mass. July 15, 2015) ............................................................................ 3
`
`Goodman v. Samsung Elecs. Am., Inc.,
`2017 WL 5636286 (S.D.N.Y. Nov. 22, 2017) .......................................................................... 7
`
`IMS Glob. Learning Consortium, Inc. v. Sch. Interoperability Framework Ass’n,
`2018 WL 662479 (D. Mass. Feb. 1, 2018) ............................................................................... 2
`
`In re Acer Am. Corp.,
`626 F.3d 1252 (Fed. Cir. 2010)................................................................................................. 6
`
`Invensys Sys., Inc. v. Emerson Elec. Co.,
`2014 WL 4477393 (E.D. Tex. July 25, 2014) .......................................................................... 8
`
`Irwin Indus. Tool Co. v. Milwaukee Elec. Tool Corp.,
`2016 WL 1735330 (D. Mass. Apr. 28, 2016) ........................................................................... 7
`
`Lexington Luminance LLC v. TCL Multimedia Holdings, Ltd.,
`No. 1:16-cv-11458 (D. Mass. Aug. 30, 2017) .......................................................................... 7
`
`Mar. VII Inv. Ltd. P’ship v. Kramer,
`2016 WL 4941985 (D. Mass. Sept. 14, 2016) .......................................................................... 2
`
`MasterObjects, Inc. v. eBay Inc.,
`2017 WL 2181132 (N.D. Cal. May 5, 2017) ............................................................................ 7
`
`ii
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`

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`Case 1:18-cv-12029-ADB Document 29 Filed 12/21/18 Page 4 of 16
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`Nilssen v. Everbrite, Inc.,
`2001 WL 34368396 (D. Del. Feb. 16, 2001) ............................................................................ 4
`
`Orbital Austl. Pty v. Daimler AG,
`2015 WL 5439774 (E.D. Mich. Sept. 15, 2015) ....................................................................... 7
`
`Qualcomm Inc. v. Apple Inc.,
`2018 WL 4104951 (S.D. Cal. Aug. 29, 2018) .......................................................................... 7
`
`SCVNGR, Inc. v. eCharge Licensing, LLC,
`2014 WL 4804738 (D. Mass. Sept. 25, 2014) .......................................................................... 7
`
`SRC Labs, LLC v. Microsoft Corp.,
`No. 2:18-cv-00321 (W.D. Wash. Nov. 20, 2018) ................................................................... 10
`
`U.S. ex rel. Ondis v. City of Woonsocket,
`480 F. Supp. 2d 434 (D. Mass. 2007) ....................................................................................... 2
`
`Uniloc USA, Inc. v. Acronis, Inc.,
`2017 WL 2899690 (E.D. Tex. Feb. 9, 2017) ............................................................................ 9
`
`Vanair Mfg., Inc. v. VMAC Glob. Tech. Inc.,
`2018 WL 1566815 (N.D. Ind. Mar. 30, 2018) .......................................................................... 7
`
`VirtualAgility Inc. v. Salesforce.com, Inc.,
`759 F.3d 1307 (Fed. Cir. 2014)................................................................................................. 7
`
`Wolverine Proctor & Schwartz, Inc. v. Aeroglide Corp.,
`394 F. Supp. 2d 299 (D. Mass. 2005) ....................................................................................... 3
`
`Statutes
`
`28 U.S.C. § 1404(a) ...................................................................................................................... 10
`
`35 U.S.C. § 316 ............................................................................................................................... 8
`
`Rules
`
`Fed. R. Civ. P. 45(c)(1) ................................................................................................................... 5
`
`L.R. 16.6 (c)(1) ............................................................................................................................... 8
`
`iii
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`Case 1:18-cv-12029-ADB Document 29 Filed 12/21/18 Page 5 of 16
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`I.
`
`INTRODUCTION
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`This patent infringement suit should be transferred to Indiana. Neither Teva entity can
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`claim Massachusetts as its home. The vast majority of potentially relevant witnesses reside in
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`Indiana. The named inventors of the patents-in-suit similarly reside outside Massachusetts.
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`Further, the corporation responsible for discovering, manufacturing, marketing, and selling the
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`accused product—Lilly—is incorporated and headquartered in Indiana.
`
`Teva does not dispute these facts. Instead, it focuses on the nominal development work on
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`Lilly’s galcanezumab product performed by Arteaus Therapeutics, which has been described as a
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`“virtual company without a physical headquarters.” Teva, however, overstates the company’s role
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`in the development work, most of which was performed by Lilly. Teva points to a Phase II clinical
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`study that Arteaus ran on galcanezumab, but Teva ignores that Arteaus did so in coordination with
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`Lilly Chorus, an Indiana entity. Teva also ignores that Lilly discovered the galcanezumab
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`molecule, identified it for further development, and performed the key studies required to initiate
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`human clinical studies. Perhaps more importantly, Teva fails to establish any connection between
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`Arteaus’s work and the issues in this case. Notably, Teva fails to explain how the Phase II clinical
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`trial Arteaus conducted (with Lilly Chorus) has any connection to the issue of whether Lilly’s final
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`drug product falls within the scope of Teva’s patent claims.
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`If the case is not transferred, it should be stayed pending the resolution of inter partes
`
`review (“IPR”) proceedings. All the factors weigh in favor of granting a stay. Lilly promptly filed
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`its petitions on the patents-in-suit and now seeks a stay at such an early stage that the Court has
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`yet to set a case schedule. Courts within and outside this district grant stays based on the filing of
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`IPR petitions, often due to the extremely high rate of IPR institution and claim cancellation. Here,
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`regardless of whether the PTAB institutes on every patent-in-suit, a stay would simplify the issues
`
`because the asserted patents share a common specification. Further, a stay will not unfairly
`1
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`

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`Case 1:18-cv-12029-ADB Document 29 Filed 12/21/18 Page 6 of 16
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`prejudice Teva because, by statute, the IPRs will be resolved quickly. Moreover, even if Teva were
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`to succeed on its infringement claims, any losses could be addressed by money damages.
`
`II.
`
`BOTH THE PUBLIC AND PRIVATE INTEREST FACTORS FAVOR TRANSFER
`
`A.
`
`The Court Should Give Little or No Weight to Teva’s Choice of Forum
`
`Teva contends that its choice of forum should “weigh[] significantly against transfer,” even
`
`though neither Teva entity is based in this district. (Dkt. 26 (“Teva Br.”) at 8.) Not so. Although a
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`plaintiff’s choice of forum generally receives some deference, courts in this district have
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`recognized that little or no deference is warranted when a plaintiff picks a forum to which it has
`
`no connection. See, e.g., Mar. VII Inv. Ltd. P’ship v. Kramer, 2016 WL 4941985, at *4 (D. Mass.
`
`Sept. 14, 2016) (“The presumption in favor of plaintiffs’ choice of venue is relatively weak in this
`
`case because the March Entities now have ‘no material connection with this district.’” (quoting
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`U.S. ex rel. Ondis v. City of Woonsocket, 480 F. Supp. 2d 434, 436 (D. Mass. 2007))). Neither
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`Teva entity has its principal place of business in Massachusetts or is incorporated in the
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`Commonwealth, and thus Teva’s selection deserves little deference.
`
`Further, a plaintiff’s choice “carries less weight when ‘the operative facts of the case have
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`no material connection with this district.’” IMS Glob. Learning Consortium, Inc. v. Sch.
`
`Interoperability Framework Ass’n, 2018 WL 662479, at *2 (D. Mass. Feb. 1, 2018) (quoting
`
`Ondis, 480 F. Supp. 2d at 436). As discussed below, the operative facts of this case have no
`
`material connection to Massachusetts. (See also Lilly Br. 11–13.)
`
`B.
`
`The Convenience of the Parties Favors Transfer to Indiana
`
`Teva wrongly argues that Lilly failed to establish that Indiana would be more convenient
`
`for the parties because Lilly allegedly “has not attempted to show that litigating in Indiana would
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`be more convenient for Teva.” (Teva Br. 8.) To the contrary, Lilly has shown that transferring this
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`patent infringement suit from Massachusetts, where neither party is domiciled, to Indiana, where
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`2
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`

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`Case 1:18-cv-12029-ADB Document 29 Filed 12/21/18 Page 7 of 16
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`nearly all the marketing, regulatory, and technical work relevant to Teva’s suit occurred, would be
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`more convenient for both parties. (Lilly Br. 8–11.)
`
`As Lilly noted in its opening brief, transfer would not merely shift inconvenience from one
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`party to the other, unlike in Wolverine Proctor & Schwartz, Inc. v. Aeroglide Corp., where the
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`court denied a transfer from plaintiff’s home forum to the defendant’s home forum. 394 F. Supp.
`
`2d 299, 302-03, 312 (D. Mass. 2005). Lilly is headquartered and incorporated in Indiana, where it
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`employs roughly 10,000 of its 15,000 employees. Teva thus is wrong when it contends that Lilly
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`“has not actually articulated any reason that litigating in Massachusetts would be inconvenient for
`
`Lilly.” (Teva Br. 8.) Teva, meanwhile, fails to establish that it would face any greater
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`inconvenience in the Southern District of Indiana than in Massachusetts. Transfer to Indiana would
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`not remove Teva from its home forum. Instead, it would bring Teva to where the activities,
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`employees, and documents central to its infringement suit occurred.
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`Although Teva cites XTRA Intermodal, that case counsels in favor of transfer. (Teva Br. 9.)
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`There, a plaintiff incorporated in one state and headquartered in another sued nine defendants
`
`located in seven other states. Fed. Ins. Co. v. XTRA Intermodal, Inc., 2015 WL 4275181, at *5 (D.
`
`Mass. July 15, 2015). Although the court found that the wide-ranging geographies did not “weigh
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`strongly in favor of transfer,” it nonetheless granted the transfer. Id. at *8. Here, the range of
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`locations is not nearly so wide—Teva, located in Switzerland, Delaware, and Pennsylvania, sued
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`Lilly, an Indiana corporation headquartered in Indiana.
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`C.
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`Indiana Is More Convenient for the Expected Witnesses
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`Teva’s primary argument that Massachusetts would not be inconvenient for the witnesses
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`is that Lilly did not specify exactly which witnesses will be called or their anticipated testimony.
`
`(Teva Br. 9-10.) Yet Lilly has provided the information needed to assess the degree of convenience
`
`for the likely witnesses, particularly given the early stage of the case. See Nilssen v. Everbrite,
`3
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`

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`Case 1:18-cv-12029-ADB Document 29 Filed 12/21/18 Page 8 of 16
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`Inc., 2001 WL 34368396, at *2-3 (D. Del. Feb. 16, 2001) (identification of witnesses not by name
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`but as “employees” or “former employees of Defendant,” with “knowledge of the allegedly
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`infringing designs,” “especially when fact discovery has yet to take place, is sufficient for purposes
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`of venue transfer analysis”). As Lilly has noted, because nearly all the marketing, regulatory, and
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`technical work relevant to its accused product occurred in Indiana, the vast majority of material
`
`witnesses are in Indiana.
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`Teva’s reliance on Depianti is inapposite. There, even though the movant did not specify
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`“who their witnesses would be and what their testimony would be,” the court found that the
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`convenience of the witnesses “would likely weigh in favor of the” transfer, though its “decision to
`
`transfer [did] not rest on [that] finding.” Depianti v. Jan-Pro Franchising Int’l, Inc., 2016 WL
`
`4771056, at *4 (D. Mass. Sept. 13, 2016).
`
`D.
`
`Teva Overstates the Role, and Relevance, of Arteaus Therapeutics
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`Teva argues that Massachusetts has a strong connection to this case and would be more
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`convenient for third-party witnesses based solely on the fact that Arteaus—a “virtual company
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`without a physical headquarters”—performed some development work. (Ex. K; Teva Br. 12-13.)
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`Teva overstates Arteaus’s role and relevance.
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`First, Teva fails to explain how Arteaus’s work purportedly links Massachusetts to the
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`events giving rise to this suit. Teva’s opposition draws no connection between the clinical study
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`Arteaus performed and the assertions in Teva’s Complaint—that Lilly’s galcanezumab product
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`allegedly infringes Teva’s claims. Similarly, Teva offers only speculation that Arteaus’s former
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`employees will be able to testify about Lilly’s decision making, and that this speculative testimony
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`will be relevant to the purported long-felt need in the market for Teva’s patented drug product.
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`(Teva Br. 11.) Indeed, Teva fails to address the fact that Lilly’s employees, not Arteaus’s, are those
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`with knowledge about Lilly’s decision making.
`4
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`

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`Case 1:18-cv-12029-ADB Document 29 Filed 12/21/18 Page 9 of 16
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`Second, Teva’s focus on Arteaus ignores the fact that drug development is a lengthy
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`process involving extensive laboratory research, clinical trials, regulatory filings, and marketing,
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`most of which Lilly itself performed in or directed from Indianapolis. Indeed, Lilly discovered the
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`galcanezumab molecule, identified it for further development, and performed the foundational
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`studies required to initiate human clinical trials, all before beginning to work with Arteaus. (See
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`Teva Br. Ex. 3, 7.) Furthermore, Arteaus’s work, which built on Lilly’s past work, was conducted
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`in collaboration with Lilly Chorus, an Indiana entity. (See Ex. L (“The two companies are working
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`together in Arteaus’ virtual lab, Grayzel says. ‘We’re able to leverage the expertise at Lilly to
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`rapidly move the compound forward,’ he says.”).) Moreover, Arteaus’s involvement ended after
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`less than three years, at which point Lilly undertook significant development work, including
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`Phase III clinical trials studying the efficacy and safety of galcanezumab in over 2,500 patients.
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`(Lilly Br. Ex. B.) Teva fails to show how Arteaus’s nominal involvement constitutes “essential
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`development” in the context of this case.
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`Third, Teva fails to support its somewhat unusual theory that Arteaus employees will be
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`key witnesses on the purported long-felt need in the market for the patented product. (Teva Br. 11.)
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`Teva ignores the location of its own inventors and scientists, who are presumably potential
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`witnesses on the issues of the research that led to the patents-in-suit and the circumstances
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`surrounding that work. Teva offers no explanation as to why employees of a company that did a
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`small amount of early-stage work for Lilly, who had nothing to do with the patents-in-suit, can
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`offer more relevant testimony on the validity of the patents-in-suit than Teva’s own inventors or
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`scientists, who reside outside of Massachusetts. Regardless, Teva can depose Arteaus witnesses
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`where they reside. Fed. R. Civ. P. 45(c)(1).
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`5
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`

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`Case 1:18-cv-12029-ADB Document 29 Filed 12/21/18 Page 10 of 16
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`E.
`
`Teva Fails to Establish Any Other Connection to Massachusetts
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`Teva’s arguments that Massachusetts has a strong connection to the events giving rise to
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`this case are without merit. Teva argues, for example, that the case is tied to Massachusetts based
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`on the mere existence of Lilly’s Cambridge Innovation Center. (Teva Br. 13.) Teva, however, fails
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`to make any connection between this facility and Lilly’s galcanezumab product or the events of
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`this case. Teva cannot do so because the Innovation Center did not perform any work on Lilly’s
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`galcanezumab drug product. (Lilly Br. Ex. A ¶¶ 5, 10.)
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`Similarly, Teva incorrectly contends that Lilly’s alleged sales of galcanezumab in
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`Massachusetts establish the forum’s ties to this litigation. Teva fails to square this assertion with
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`the fact that the employees primarily responsible for marketing Lilly’s drug and for building a
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`sales force are located in Lilly’s Indianapolis headquarters. (Lilly Br. Ex. A ¶ 4.) Regardless, the
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`allegedly infringing product is sold nationwide and thus does no more to tie the case to
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`Massachusetts than to any other state. See In re Acer Am. Corp., 626 F.3d 1252, 1256 (Fed. Cir.
`
`2010) (explaining that the mere “sale of an accused product offered nationwide does not give rise
`
`to a substantial interest in any single venue.”).
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`F.
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`Teva Ignores the Substantial Connections Between Indiana and This Case
`
`Teva ignores several key facts that show Indiana has substantial ties to the events giving
`
`rise to this suit, while Massachusetts does not. For example, Teva fails to address that:
`
`• The accused drug product is manufactured in Indiana, not Massachusetts
`• The accused antibody (active pharmaceutical product) is not made in Massachusetts
`• Lilly’s employees responsible for marketing the accused product are in Indiana
`• Three of the four inventors on Lilly’s patent are located in Indiana1
`• Lilly’s research, clinical, regulatory, and marketing personnel are primarily in Indiana (to the
`extent Lilly’s clinical and scientific work are even relevant to Teva’s infringement claims)
`
`1 The fourth Lilly inventor is in California, where most of Teva’s inventors are also located.
`6
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`

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`Case 1:18-cv-12029-ADB Document 29 Filed 12/21/18 Page 11 of 16
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`III.
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`A STAY PENDING INTER PARTES REVIEW IS WARRANTED
`
`A.
`
`Lilly’s Stay Motion Is Ripe
`
`Contrary to Teva’s assertion, Lilly’s request for a stay is ripe. Indeed, Lilly’s motion for a
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`stay pending resolution of the IPRs or, alternatively, a short stay until the Patent Trial and Appeal
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`Board issues its institution decisions, would be partly moot if this court deferred consideration
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`until after the Board issued its institution decision. Citing a single case, in which the court was not
`
`considering a pre-institution stay, Teva argues that “[t]he mere filing of a petition for IPR is
`
`generally seen as insufficient to warrant a stay.” (Teva Br. 16 (quoting SCVNGR, Inc. v. eCharge
`
`Licensing, LLC, 2014 WL 4804738, at *8 (D. Mass. Sept. 25, 2014)).) But Courts in this district
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`have found the filing of a petition for IPR sufficient to warrant a stay.2
`
`B.
`
`Teva Will Suffer No Undue Prejudice or Tactical Disadvantage from a Stay
`
`Teva argues that a stay will cause undue prejudice simply because the parties are direct
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`competitors. (Teva Br. 16-18.) One of the cases that Teva itself cites, however, establishes that
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`even if Teva were to succeed on its claims of infringement, any losses could be addressed by
`
`money damages. See
`
`Irwin
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`Indus. Tool Co. v. Milwaukee Elec. Tool Corp.,
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`2016 WL 1735330, at *4 (D. Mass. Apr. 28, 2016) (“Notwithstanding the parties’ status as direct
`
`competitors, the evidence before the court does not establish likely losses to Lenox that cannot be
`
`2 See, e.g., Lilly Br. at 16; Lexington Luminance LLC v. TCL Multimedia Holdings, Ltd., No. 1:16-cv-
`11458, slip op. at 1 (D. Mass. Mar. 3, 2017) (Ex. M). Furthermore, courts in other districts have routinely
`granted stays based on the filing of an IPR petition. VirtualAgility Inc. v. Salesforce.com, Inc., 759 F.3d
`1307, 1316 (Fed. Cir. 2014) (“[A] motion to stay could be granted even before the PTAB rules on a post-
`grant review petition.”); see, e.g., Baxter Int’l, Inc. v. Becton, Dickinson & Co., No. 1:17-cv-07576, slip op.
`at 3 (N.D. Ill. Nov. 26, 2018) (staying litigation prior to institution) (Ex. N); Qualcomm Inc. v. Apple Inc.,
`2018 WL 4104951, at *4 (S.D. Cal. Aug. 29, 2018) (same); Vanair Mfg., Inc. v. VMAC Glob. Tech. Inc.,
`2018 WL 1566815, at *3 (N.D. Ind. Mar. 30, 2018); MasterObjects, Inc. v. eBay Inc., 2017 WL 2181132,
`at *4 (N.D. Cal. May 5, 2017) (same); Cypress Semiconductor Corp. v. LG Elecs., Inc., 2014 WL 5477795,
`at *4 (N.D. Cal. Oct. 29, 2014) (same); Orbital Austl. Pty v. Daimler AG, 2015 WL 5439774, at *3 (E.D.
`Mich. Sept. 15, 2015) (same); Blephex LLC v. Pain Point Med. Sys. Inc, 2016 WL 7839343, at *3 (N.D.
`Tex. Nov. 3, 2016) (same); Goodman v. Samsung Elecs. Am., Inc., 2017 WL 5636286, at *4 (S.D.N.Y.
`Nov. 22, 2017) (same).
`
`7
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`

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`Case 1:18-cv-12029-ADB Document 29 Filed 12/21/18 Page 12 of 16
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`addressed by money damages if it succeeds on its claims of infringement.”). Indeed, Teva’s
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`decision not to seek a preliminary injunction makes clear that any alleged injury to Teva could be
`
`compensated with money damages. A short stay pending resolution of the IPRs will not, as Teva
`
`contends, meaningfully impair the availability of any future relief.
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`Further, Teva misleadingly argues that the IPRs may not be resolved quickly. (Teva
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`Br. 17.) By statute, the Board must decide whether to institute an IPR within six months of its
`
`filing and, if instituted, IPR proceedings must be completed within 12 months of institution. Even
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`if the Board took the extraordinary step of extending the final written decision deadline, it would
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`still issue at most 18 months after institution. 35 U.S.C. § 316. Teva’s objection based on potential
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`requests for rehearing and appeals is a red herring—Lilly seeks only a stay pending resolution of
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`the IPRs or, alternatively, pending the Board’s institution decisions. Teva’s reliance on ACQIS is
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`similarly misplaced. (See Teva Br. 17-18). In ACQIS, the defendant sought to extend a stay
`
`pending an appeal of the IPR decisions. ACQIS, LLC v. EMC Corp., 2016 WL 4250245, at *3 (D.
`
`Mass. Aug. 10, 2016) (“ACQIS II”). That is not what Lilly is requesting here.
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`Teva’s reliance on Invensys is also misplaced. Teva asserts that a stay would unduly burden
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`its “recognized interest in the timely enforcement of its patent rights.” (Teva Br. 18 (quoting
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`Invensys Sys., Inc. v. Emerson Elec. Co., 2014 WL 4477393, at *2 (E.D. Tex. July 25, 2014)).)
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`The defendant in Invensys, however, petitioned for IPR so late in the litigation that “the PTAB’s
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`final decision might not be reached until . . . well beyond” the trial date. Id. Here, in contrast, Lilly
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`petitioned for IPR on all nine patents-in-suit either before or within a week of Teva’s Complaint.
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`And it is very unlikely that the 12-month deadline for the Board’s final decision would extend past
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`any date set for trial. See L.R. 16.6 (c)(1). At this early stage, a stay would not impede timely
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`enforcement of Teva’s rights.
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`8
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`Case 1:18-cv-12029-ADB Document 29 Filed 12/21/18 Page 13 of 16
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`Teva argues a stay would prove prejudicial as evidence is lost, witnesses’ memories fade,
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`or witnesses become unavailable. (Teva Br. 18 n.11.) Although the Texas Uniloc case Teva cites
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`does state that such concerns are “entitled to weight,” the Uniloc court goes on to explain that “this
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`factor is present in every case in which patentee resists a stay, and is therefore not sufficient,
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`standing alone, to defeat a motion to stay.” Uniloc USA, Inc. v. Acronis, Inc., 2017 WL 2899690,
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`at *2 (E.D. Tex. Feb. 9, 2017).
`
`C.
`
`A Stay Will Simplify the Issues in This Case
`
`Teva incorrectly contends that a stay could simplify the issues in this case only if the Board
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`instituted IPRs on every patent-in-suit. But the nine patents-in-suit share a common specification
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`and all claim an extremely broad genus of antibodies. Thus, institution on even one patent would
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`streamline the case by giving a strong indication that (1) that patent is invalid, and (2) other patents
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`will likely face similar validity issues.
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`Courts in this district have adopted similar reasoning. In ACQIS v. EMC Corp., 109 F.
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`Supp. 3d 352, 357 (D. Mass. 2015) (“ACQIS I”), for example, this Court found that instituting
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`IPRs on only two of eleven patents-in-suit would simplify the issues because there was “significant
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`overlap in claim terms” among all asserted claims and patents. Here, as in ACQIS I, the similarities
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`between the asserted patents means that institution on any one patent could simplify the issues in
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`this case. Indeed, even if the Board denies institution, a stay is likely to simplify the issues because
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`the parties and the Court will have the benefit of the Board’s reasoning, which may be instructive.
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`Teva also attempts to downplay the relevance of high IPR institution and claim cancellation
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`rates (Lilly Br. 18). Yet other district courts have found that the high rates weigh in favor of a stay,
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`particularly in cases where multiple patents-in-suit were being challenged in IPRs. In a recent
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`decision in SRC Labs, LLC v. Microsoft Corp., for example, the district court granted a stay
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`pending the Board’s institution decisions as to 10 petitions Microsoft had filed. No. 2:18-cv-00321,
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`Case 1:18-cv-12029-ADB Document 29 Filed 12/21/18 Page 14 of 16
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`slip op. at 2 (W.D. Wash. Nov. 20, 2018) (Ex. O). The court, relying on these high rates, held that
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`the stay motion was not premature simply because the Board had not yet instituted IPR. Id., slip
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`op. at 6–8 (“[T]he essential point is that because there are 10 IPR petitions pending, it is far more
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`likely than 43% that at least 1 of the IPR petitions substantially simplifies this case, and far less
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`likely than 46% that none of the IPR petitions substantially simplifies this case.”).
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`D.
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`The Early Stage of this Litigation Strongly Favors a Stay
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`Teva admits that “the instant case is in its early stages,” but contends that this fact should
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`have no bearing on whether a stay is warranted. (Teva Br. 20.) Instead, Teva incorrectly accuses
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`Lilly of making a “strategic [decision] to delay the filing of its petitions.” (Id.) After Teva filed its
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`first infringement suit, and long before Lilly had any product on the market, Lilly worked diligently
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`to prepare its IPR petitions on the growing number of patents-in-suit—all of which were filed well
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`before the statutory deadline. The timing of Lilly’s IPR petitions thus reveals no dilatory motive,
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`as Teva suggests. On the contrary, given the number of patents and claims at issue in this case, the
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`timing of the petitions was reasonable. See ACQIS I at 359 (“[T]he timing of the petitions was
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`reasonable because of the vast number of claims in the asserted patents.”).
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`IV.
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`CONCLUSION
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`For the reasons stated herein and in Lilly’s opening brief, Lilly respectfully requests
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`transfer to the Southern District of Indiana pursuant to 28 U.S.C. § 1404(a). Alternatively, Lilly
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`respectfully requests a stay of this litigation pending resolution of the IPRs for the nine patents-in-
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`suit, or at least until April 16, 2019, when the Board will have issued all its institution decisions.
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`Case 1:18-cv-12029-ADB Document 29 Filed 12/21/18 Page 15 of 16
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`Dated: December 21, 2018
`
`By Its Attorneys,
`
`/s/Andrea L. Martin
`Andrea L. Martin (BBO 666117)
`BURNS & LEVINSON LLP
`125 Summer Street
`Boston, MA 02110-1624
`(617) 345-3000
`
`Charles E. Lipsey
`FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, LLP
`Two Freedom Square
`11955 Freedom Square
`Reston, VA 20190-5675
`
`William B. Raich
`Danielle A. Duszczyszyn
`Emily R. Gabranski
`FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, LLP
`901 New York Avenue, NW
`Washington, DC 20001-4413
`
`Counsel for Eli Lilly and Company
`
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`Case 1:18-cv-12029-ADB Document 29 Filed 12/21/18 Page 16 of 16
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`CERTIFICATE OF SERVICE
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`I, Andrea L. Martin, hereby certify that a copy of the foregoing document, filed through
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`the CM/ECF system, will be sent electronically to the registered participants as identified on the
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`Notice of Electronic Filing (NEF) and paper copies shall be served by first class mail postage
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`prepaid on all counsel of record who are not served through the CM/ECF system on December 21,
`
`2018.
`
`4821-6671-8596.2
`
`/s/Andrea L. Martin
`Andrea L. Martin
`
`12
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`