Case 1:18-cv-12029-ADB Document 611 Filed 11/14/22 Page 1 of 179
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`
`_______________________________
`TEVA PHARMACEUTICALS
`INTERNATIONAL GMBH and
`TEVA PHARMACEUTICALS USA, INC.,
`
` Plaintiffs, Civil Action
` No. 18-12029-ADB
`
`V.
` November 1, 2022
`ELI LILLY AND COMPANY,
` 9:15 a.m.
`
`
` Defendant.
`_______________________________
`
`TRANSCRIPT OF JURY TRIAL DAY 11
`BEFORE THE HONORABLE ALLISON D. BURROUGHS
`UNITED STATES DISTRICT COURT
`JOHN J. MOAKLEY U.S. COURTHOUSE
`1 COURTHOUSE WAY
`BOSTON, MA 02210
`
`
`
`DEBRA M. JOYCE, RMR, CRR, FCRR
`KRISTIN KELLEY, RPR, CRR
`Official Court Reporters
`John J. Moakley U.S. Courthouse
`1 Courthouse Way, Room 5204
`Boston, MA 02210
`joycedebra@gmail.com
`
`
`
`11-1
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`
`_______________________________
`TEVA PHARMACEUTICALS
`INTERNATIONAL GMBH and
`TEVA PHARMACEUTICALS USA, INC.,
`
` Plaintiffs, Civil Action
` No. 18-12029-ADB
`
`V.
` November 1, 2022
`ELI LILLY AND COMPANY,
` 9:15 a.m.
`
`
` Defendant.
`_______________________________
`
`TRANSCRIPT OF JURY TRIAL DAY 11
`BEFORE THE HONORABLE ALLISON D. BURROUGHS
`UNITED STATES DISTRICT COURT
`JOHN J. MOAKLEY U.S. COURTHOUSE
`1 COURTHOUSE WAY
`BOSTON, MA 02210
`
`
`
`DEBRA M. JOYCE, RMR, CRR, FCRR
`KRISTIN KELLEY, RPR, CRR
`Official Court Reporters
`John J. Moakley U.S. Courthouse
`1 Courthouse Way, Room 5204
`Boston, MA 02210
`joycedebra@gmail.com
`
`
`
`Case 1:18-cv-12029-ADB Document 611 Filed 11/14/22 Page 2 of 179
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`APPEARANCES:
`FOR THE PLAINTIFFS:
`DOUGLAS J. KLINE, ESQ.
`ELAINE HERRMANN BLAIS, ESQ.
`ROBERT FREDERICKSON, III, ESQ.
`ERIC T. ROMEO, ESQ
`MOLLY GRAMMEL, ESQ.
`JOSHUA S. WEINGER, ESQ.
`KEVIN P. MARTIN, ESQ.
`TARA ROSE THIGPEN, ESQ.
`Goodwin Procter, LLP
`100 Northern Avenue
`Boston, MA 02210
`617-570-1000
`dkline@goodwinlaw.com
`eblais@goodwinlaw.com
`rfrederickson@goodwinprocter.com
`eromeo@goodwinprocter.com
`mrhodes@goodwinprocter.com
`kmartin@goodwinprocter.com
`jweinger@goodwinprocter.com
`tthigpen@goodwinlaw.com
`NATASHA E. DAUGHTREY, ESQ.
`SEAN M. ANDERSON, ESQ.
`Goodwin Procter LLP
`601 S. Figueroa Street
`Los Angeles, CA 90017-5704
`213-426-2500
`NDaughtrey@goodwinlaw.com
`AUDIE SOUCY, ESQ.
`GRACE PEACE TRUONG, ESQ.
`GABRIEL BRUNO FERRANTE, ESQ.
`Goodwin Procter LLP
`New York Times Bldg
`620 8th Ave
`New York, NY 10018
`212-813-8100
`MADELINE DiLASCIA, ESQ.
`Goodwin Procter, LLP
`1900 N St NW
`Washington, DC 20036
`202-346-4000
`
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`Case 1:18-cv-12029-ADB Document 611 Filed 11/14/22 Page 3 of 179
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`FOR THE DEFENDANT:
`CHARLES E. LIPSEY, ESQ.
`RYAN P. O'QUINN, ESQ.
`Finnegan,Henderson,Farabow,Garrett & Dunner, LLP.
`1875 Explorer Street
`Reston, VA 20190
`571-203-2700
`charles.lipsey@finnegan.com
`oquinnr@finnegan.com
`EMILY R. GABRANSKI, ESQ.
`MARTA GARCIA DANESHVAR, ESQ.
`OULU (LULU) WANG, ESQ.
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
`Two Seaport Lane, 6th Floor
`Boston, MA 02210-2001
`202-408-4331
`emily.gabranski@finnegan.com
`marta.garcia@finnegan.com
`lulu.wang@finnegan.com
`PIER D. DeROO, ESQ.
`DANIELLE A. DUSZCZYSZYN, ESQ.
`J. MICHAEL JAKES, ESQ.
`SYDNEY R. KESTLE, ESQ.
`YOOJIN LEE, ESQ., PhD.
`MATTHEW J. LUNEACK, ESQ.
`WILLIAM B. RAICH, ESQ.
`DENISE MAIN, ESQ.
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
`901 New York Avenue Northwest
`Washington, DC 20814
`202-408-4418
`pier.deroo@finnegan.com
`danielle.duszczyszyn@finnegan.com
`mike.jakes@finnegan.com
`matthew.luneack@finnegan.com
`william.raich@finnegan.com
`denise.main@finnegan.com
`ANDREA L. MARTIN, ESQ.
`Burns & Levinson LLP
`125 Summer Street
`Boston, MA 02110
`617-345-3000
`amartin@burnslev.com
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`ALSO PRESENT:
`FROM TEVA PHARMACEUTICALS:
`Jo Hilliard, Esq.
`Lori Wolf, Esq.
`Colman Ragan, Esq.
`FROM ELI LILLY:
`Christalyn Rhodes, PhD
`Gerry Keleher, Esq.
`Pat Hastings
`Mira Mulvaney, Esq.
`Amanda Walter
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`P R O C E E D I N G S
`(The following proceedings were held in open
`court before the Honorable Allison D. Burroughs, United States
`District Judge, United States District Court, District of
`Massachusetts, at the John J. Moakley United States Courthouse,
`1 Courthouse Way, Boston, Massachusetts, on November 1, 2022.)
`THE COURT: Okay. In terms of the timing, I need to
`just -- I read Ms. Blais' letter this morning. I have Lilly's
`in front of me and I just skimmed it. I'll read it during the
`testimony this morning. I see the gist -- as I said, I read
`Teva's. I see the gist of what Lilly is arguing. The thing is
`that when -- what day -- what day did Teva rest?
`MR. KLINE: Well, I believe we rested on Thursday,
`your Honor.
`THE COURT: So that means that we'd be -- we started
`on Tuesday. That was all picking a jury. So they went -- they
`went basically Wednesday to Thursday. So it's going to be hard
`to give you ten full days. That just doesn't add up there.
`Where in there we actually call it, I'll -- let me figure it
`out and we'll talk.
`MR. KLINE: If I could say one thing, your Honor.
`THE COURT: Yes.
`MR. KLINE: I think it's encouraging.
`THE COURT: Yes.
`MR. KLINE: I think there's more agreement than there
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`might appear to be from the letters that crossed. The parties
`seem to agree that the evidence should close at the end of the
`day on Monday. Lilly goes on to say that means with closing
`their case. It really doesn't, though, your Honor, because if
`we close the evidence on Monday, based on the days that we've
`been having, we'd have 22 hours, including today through
`Monday.
`
`By our count of the clock that we exchange every
`morning and which is based on Lilly's calculation of the time
`used so far, that would mean Teva would have 9 1/2 hours left
`of those 22 and Lilly would have 12 1/2 left of those 22. So
`it's our position that the parties ought to agree we're going
`to close the evidence at the end of the day on Monday. Between
`now and then Lilly can use its 12 1/2 hours how it chooses.
`Teva will use its 9 1/2 hours as it chooses. That will allow
`for Teva's rebuttal case and it would result in the end in each
`side having about 30 hours and 30 minutes of 61 hours of total
`jury time. So I think there's more agreement than it might
`appear from the letters.
`MR. O'QUINN: I think the way the math has been set
`out is accurate. I mean, that time that Mr. Kline has stated
`for Teva and for Lilly, you know, Teva's nine hours, we'll need
`to include both its cross-examinations and any rebuttal case,
`because Teva's rebuttal case has been ongoing this entire time.
`They're not going to need or get a stand-alone rebuttal case
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`after the rest of the evidence is closed.
`MR. KLINE: Well, that contradicts with the
`stipulation we have in place, your Honor.
`THE COURT: They can have a rebuttal case because
`they're entitled to respond to your invalidity case.
`MR. O'QUINN: They could use their trial time as they
`
`see fit.
`
`THE COURT: Exactly, yes. I don't think he's
`disputing that.
`MR. KLINE: I am not.
`THE COURT: So I'll take a look at the --
`MR. KLINE: Okay.
`THE COURT: I'm just doing the math. I know that
`Lilly can't have ten trial days for their case. Where we call
`it within that, I know there's -- they didn't have ten days.
`There's just not ten days left.
`MR. O'QUINN: Well, three of our days, your Honor,
`would be partial days. Looking at it in terms of hours is more
`instructive than looking at it in terms of days.
`THE COURT: Okay.
`MR. KLINE: And I agree with that.
`THE COURT: I'll take a look at it as we're hearing
`testimony.
`MR. KLINE: We probably need to do some McDonnell
`things before the jury comes in because we're going to play
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`that.
`
`THE COURT: Okay.
`MR. LIPSEY: We're going to play Dr. Rosenthal first.
`It's short.
`MR. KLINE: I don't know the duration.
`MR. LIPSEY: I think we're later on Rosenthal.
`Slight housekeeping, your Honor, there's a stipulation
`which the parties have agreed to which we'd like to have read
`before Dr. McDonnell testifies.
`THE COURT: Okay.
`MR. LIPSEY: If I can hand it up.
`MR. KLINE: All of these?
`MR. LIPSEY: Right.
`MR. KLINE: These just come from the document in the
`pretrial brief?
`MR. LIPSEY: Yes. I was told to hand it up.
`May I approach, your Honor?
`THE COURT: Yes, you may approach.
`These are off the original list?
`MR. LIPSEY: Excuse me?
`THE COURT: These are off the original list? Okay.
`I'll copy them off the list after you read them.
`Go ahead.
`MR. MARTIN: Good morning, your Honor. Kevin Martin
`for Teva. Yesterday the parties discussed with you a limiting
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`instruction to go to the jury to explain what can be used for
`what purposes. We sent Lilly a draft last night. They got
`back to us tomorrow. We provided some feedback on their draft.
`We don't have an agreement. So we'd like to hand up a copy of
`our proposed instruction. I've got all three right here, if
`that's easier, sure.
`THE COURT: That'd be great.
`This doesn't need to be read first thing, right?
`MR. MARTIN: I think it needs to be read before
`McDonnell testifies, unless after he begins testifying, at some
`point during his testimony, instruct.
`THE COURT: Is he first?
`MR. KLINE: Yes.
`THE COURT: I'm not going to have time to. I can't
`give it before. I can give it either right after or before the
`cross. How long's his direct?
`MR. RAICH: Possibly three hours?
`THE COURT: Okay. So can I work on this and then give
`him an instruction before cross?
`MR. RAICH: From our perspective, yes.
`MR. MARTIN: That may be the case, your Honor. As you
`go through the background of the witness, you may have a chance
`to read it just so it can make sense at some point.
`THE COURT: The other thing is we can also do it
`before we come back from the morning break. I'll be partway
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`through the draft.
`MR. MARTIN: That makes sense to us, your Honor.
`MR. DEROO: There was a pending issue. I think there
`was a motion handed up yesterday --
`THE COURT: Yes.
`MR. DEROO: -- on yet another post-filing evidence
`issue. Would you like to hear argument on that this morning?
`I can make it brief.
`THE COURT: Sure. I've read -- I know Teva's
`position. I have your memo, which, again, I've sort of scanned
`and I haven't benefitted -- but I haven't really had time to
`really...
`
`MR. DEROO: Just real brief, your Honor, courts have
`repeatedly found that post-filing date evidence is relevant to
`enablement, and that's evidence from both parties, plaintiff
`and defendant. There's no special rules or restrictions on the
`evidence relating to a defendant's efforts in making the full
`scope of an invention whether it knew of the patents. And that
`comes from Abbott, from Exalta, from MorphoSys, Amgen, which
`actually reversed based on --
`THE COURT: I think the court reporter is about to ask
`you to slow down.
`MR. DEROO: My apologies.
`Frankly, we're here to let the jury hear the evidence
`on enablement, including the key question of whether the Teva's
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`patents actually enable a person of ordinary skill to actually
`make and use an antibody similar to Lilly's antibody. And
`that's the key here because Teva's motion is predicated on this
`assumption that its patents must have disclosed something,
`anything that would have made the making and using of Lilly's
`antibody easier, but Teva's motion didn't cite a single
`disclosure from its own patent, nothing that would assist a
`person of ordinary skill in arriving at --
`THE COURT: What about the piece of their argument
`that because they hadn't read the patent, they weren't persons
`of ordinary skill?
`MR. DEROO: Well, that's the -- that's the whole issue
`here, that the patent must disclose something that would assist
`Lilly's inventors beyond what was already in the level of
`ordinary skill. And that's exactly the issue that the jury is
`here to decide. That's the reason we're trying this case. And
`the facts so far in this case and under the law under MorphoSys
`are clear that knowing of one antibody like Teva's doesn't
`assist anyone with making another different antibody like
`Lilly's.
`And so we are here at trial, I think it's appropriate
`to give the jury this evidence instead of creating these
`artificial restrictions and trying to slice and dice this
`post-date evidence in a way that's not supported by the law.
`MR. MARTIN: So I think your Honor -- sorry.
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`MR. DEROO: Did you want the podium?
`MR. MARTIN: Sure.
`I think your Honor has your finger on it. This is
`really a narrow issue. It has nothing do with the broad scope
`of the mill. If you look at their response that they filed, 90
`percent of what they talk about has nothing to do with what the
`definition of a POSA is. So our definition is that when the
`expert is talking -- the expert can look at the specification
`and say this doesn't teach anything the way counsel just said.
`They can make that argument.
`But what they can't say is that in evidence of that is
`that, before 2010, the folks at Lilly had a hard time
`developing Emgality, because you're now coming out of the
`hypothetical world or what a hypothetical POSA would have
`understood after reading the specification, and, instead,
`they're trying to say this actual -- these actual efforts are
`evidence of what a POSA would have been, but they never read
`the patent. So they can't -- they can -- they can put in most
`of the evidence they want. They just can't put in this one
`piece.
`
`THE COURT: See, I just think that goes to -- I think
`that's for cross-examination. Why am I wrong about that?
`MR. MARTIN: You're wrong about that, your Honor,
`because this will be an expert witness saying that the efforts
`of Lilly are evidence of what a hypothetical POSA would have
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`understood or not after reading the specification. Expert
`testimony has to be based upon facts and evidence. Here you
`have an expert witness offering opinion testimony about
`something which is actually contradicted by their inventor's
`own sworn testimony, which is that --
`THE COURT: Can't you put him back on cross and say to
`him, what if they didn't read the patent? Doesn't that make
`them --
`
`MR. MARTIN: I think it's still too prejudicial, your
`Honor, and it's still irrelevant. It would not meet the 701
`standard of expert testimony based upon evidence.
`MR. DEROO: Your Honor is completely correct. This is
`something that just goes to the weight of the evidence. I
`mean, in the case law, Abbott, Exalta, MorphoSys, Amgen, this
`post-filing date evidence, this is not in the realm of
`hypothetical. This is objective evidence of what actually
`happened and the struggles that people would encounter trying
`to make them use the full scope of the claims under the
`enablement standard.
`MR. MARTIN: Your Honor, none of the cases that they
`cite actually address the situation and none of them did a
`party argue or the Court find that efforts by actual inventors
`to reduce something in practice, admittedly not having read the
`specification, were relevant to an expert's determination of
`what a POSA would have understood for enablement purposes.
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`THE COURT: All right. I think I'm going to leave it
`for cross-examination.
`MR. DEROO: Thank you, your Honor.
`THE COURT: Anything else for this morning?
`MS. DAUGHTREY: Yes.
`Your Honor, Dr. McDonnell is going to be the first
`live witness testifying today. We have a few disputes related
`to his demonstratives and some of his exhibits. So I'll try to
`work through them as efficiently as possible.
`The first issue is that, as your Honor recalls, there
`was summary judgment, briefing and a motion in limine on
`judicial estoppel, and your Honor said that, at that stage of
`the case, it wasn't appropriate to preclude Lilly from making
`these arguments but we had leave to renew if they crossed the
`line into what would be properly judicially estopped.
`Some of the slides in Dr. McDonnell's demonstratives
`that he's going to use today appear to be taking submissions
`that are directly contrary to submissions that Lilly took and
`succeeded on in the IPRs. That's slide 22, 62 through 69, and
`71 through 76. Those are in the materials that I just handed
`to you. And just to help you --
`THE COURT: Okay. Which ones are they?
`MS. DAUGHTREY: Well, what I gave to you, the first
`piece I gave to you, groups those slides and what's evidence in
`contrary to them in the IPR testimony, but the next piece of
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`paper I gave you is the actual slides, just alone without any
`commentary.
`Your Honor, you may remember that in your summary
`judgment motion, for example, you said, "It was exceedingly
`difficult to square Lilly's argument with the PTAB that
`mirroring anti-CGRP antagonist antibodies were well known and
`extensively described in the prior art with its current
`argument that the prior art contained minimal information about
`CGRP antibodies." And it appears that that's exactly what
`Lilly's going to try to do with Dr. McDonnell.
`For example, their slide DDX2-22.
`THE COURT: All right. So --
`MS. DAUGHTREY: So the first page of the first
`document I just handed you has this.
`THE COURT: Has the two slide side by side?
`MS. DAUGHTREY: Correct.
`THE COURT: Do you have a copy for my law clerk or can
`you pop them on the screen?
`MS. DAUGHTREY: Yes. I'll bring that to you in just a
`moment, your Honor.
`So the issue is --
`We have extra copies. He just has to find it in the
`box. Lot of documents here today.
`So, for example, in IPRs, Lilly said the prior art was
`replete with exemplary disclosures of anti-CGRP antagonist
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`antibodies, including humanized antibodies, to treat human
`diseases and conditions. And then in their slides, they say,
`at most, there's six of these antibodies. And in their summary
`of the factors for determining undue experimentation, they say
`the state of the art was immature. Things can't have been
`replete with exemplary disclosures and also immature. So we
`object to Dr. McDonnell essentially asserting that the prior
`art was polar opposite of what they argued successfully, what
`Lilly argued successfully in the IPRs.
`The next category of slides are about humanization and
`unpredictability or difficulty in maintaining specificity and
`affinity. That's slide 63 through 69 and 73 through 76.
`You'll see again in the IPRs that Lilly argued that
`humanization was well established, routine. They said that,
`for example, the Queen publication taught the POSA how to
`maintain the original binding affinity of the donor non-human
`antibody and that that was the gold standard for humanization.
`They refer to all these prior art technologies as
`allowing for routine and successful humanization, and yet
`Dr. McDonnell's going to get up and say, nope, you wouldn't
`know if this would ever work, it was so difficult, people
`wouldn't know how to do this, and those are just directly
`contrary positions to what Lilly took in the IPR and succeeded
`on.
`
`MS. LEE: Your Honor, if I may, first of all, your
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`Case 1:18-cv-12029-ADB Document 611 Filed 11/14/22 Page 17 of 179
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`Honor already decided -- Teva summary judgment motion for
`judicial estoppel, and, again, Teva's motion for in limine
`incorporating their arguments from the summary judgment
`briefing. And, again, as Lilly explained and your Honor
`agreed, that Lilly's statements were in the context of the IPR
`proceedings, which involved a different patent and different
`locations. There, again, the issue was obviousness where the
`POSA would have had a reasonable expectation of making a single
`humanized anti-CGRP antibody. And here Dr. McDonnell will have
`to explain why the Teva patent failed to enable and describe
`the full scope of any and all humanized anti-CGRP antagonist
`antibodies. Lilly's statements are not mutually exclusive to
`what Dr. McDonnell will explain to the jury.
`And going to the specific slides, like, for instance,
`the Teva -- Ms. Daughtrey referenced to slide 22 with respect
`to prior art mirroring antibodies. Again, Dr. McDonnell would
`explain why the existence of murine antibodies known in the
`prior art is not the same issue as whether the prior art
`provided a well-known class of claimed anti-CGRP antagonist
`antibodies, which were human. The information that was known
`in the prior art is not sufficient to provide that the
`information that is a critical part of determining the written
`description and enablement inquiry. There's no mutually
`exclusive inconsistency between what Lilly advocated in the
`PTAB proceedings versus what Dr. McDonnell would explain to the
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`Case 1:18-cv-12029-ADB Document 611 Filed 11/14/22 Page 18 of 179
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`jury today.
`And same for the humanization issues. As your Honor
`already explained and acknowledged, the fact that the methods
`were known and routinely used is not inconsistent with whether
`the method laborious, unpredictable, costly, time-consuming.
`There's no mutually exclusive inconsistency between Lilly's
`explaining the methods were well known and routine in the art
`and routinely used in the art versus the methods we'll provide
`to -- will lead to the ongoing experimentation when it's in the
`context of the full scope of the claimed methods.
`MS. DAUGHTREY: Your Honor, I think if you look at the
`statements that Lilly made in the IPR that are in the slides
`that I provided to you and -- we're waiting to get a copy. You
`can have my copy.
`You can see what she just described what
`Dr. McDonnell's going to say is pretty darn on point to the
`contrary of what they argued in the IPRs.
`They're welcome to say how much time it would take or
`if it would cost a certain amount of money, but the conclusion
`that these antibodies were not well known in the art or that
`this would be a very difficult and unexpected procedure for
`humanization, that's the opposite of what they said in the IPR.
`They said this was like the bread and butter of experts in the
`field doing this type of work. So that's our position. I
`don't want to necessarily belabor the point because we have
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`Case 1:18-cv-12029-ADB Document 611 Filed 11/14/22 Page 19 of 179
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`some other disputes to discuss but welcome to stop here and any
`questions you have.
`THE COURT: Have we resolved enough to get to 11:30 or
`
`no?
`
`MS. DAUGHTREY: No. I can pick the one other, like,
`most important issue to raise with you right now, if you'd
`like.
`
`THE COURT: Is this issue that -- I haven't had any
`time to really look at these slides and dig into this. Does
`this need to be -- is this going to come up before 11:30?
`MS. DAUGHTREY: I think the first slide -- I don't
`know how long their direct is going to be but I think the first
`slide we object to is slide 22. So I don't know how long it's
`going to take them to get to that. I presume they'll get to
`that before the break, though, I think.
`THE COURT: Okay. I'd have to look at it while
`they're going through the cross-examination and all that.
`MS. DAUGHTREY: Thank you, your Honor.
`The next issue we want to address, which is also a
`demonstrative issue, relates to the "stars in the sky" document
`that we heard testimony from Dr. Abdiche on.
`So Lilly has included in Dr. McDonnell's slide 27 and
`28, which you have there, and they're trying --
`THE COURT: I only see 28. Where's 27, please? Is it
`in the pack and I'm missing it? Oh, no. I have 17.
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`Case 1:18-cv-12029-ADB Document 611 Filed 11/14/22 Page 20 of 179
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`MS. DAUGHTREY: Actually, your Honor, I'm sorry. Just
`look at slide 28.
`THE COURT: Okay.
`MS. DAUGHTREY: So slide 28 is -- says: "The number
`of candidate antibodies that potentially fall within the claims
`is practically limitless," and he has the slide from
`Dr. Abdiche's testimony.
`And you'll recall, your Honor, that during the motion
`for summary judgment, your Honor took a look at Lilly's
`interpretation of this slide and said it lacked -- I think it
`was not credible or persuasive to assert that a person of skill
`in the art would have undergone this kind of randomization.
`And Dr. McDonnell is going to say that his interpretation of
`this document is that that was what Dr. Abdiche meant by the
`slide, that this is how a POSA would determine what are the
`antibodies within the scope of the claims.
`That's directly contrary to what Dr. Abdiche said in
`the declaration she submitted during summary judgment briefing,
`and on the stand. So Dr. McDonnell's opinions completely
`contradict the author's, like, you know, interpretation, and
`her explanation of what the document intended. He's not
`Dr. Abdiche. He can't say, I was there and she meant to convey
`this. That's not what the slide conveys. So his opinions
`about this slide are really lacking in any compliance with 702
`and 703, that he doesn't have specialized knowledge or skill to
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`Case 1:18-cv-12029-ADB Document 611 Filed 11/14/22 Page 21 of 179
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`21
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`interpret this document in a way that's contradictory with
`Dr. Abdiche's statement about it. He can't testify as to her
`state of mind.
`And it's also prejudicial because we think they're
`really stretching with their interpretation of this slide.
`And, again, it's contradicted by the only evidence in the
`record. So we think they should not be able to make this
`stretch.
`THE COURT: Okay. Can you go see if the jury is here,
`please. Bring them out if they are. I'm not going to keep
`them waiting today.
`MS. LEE: This slide is meant to illustrate the
`potential size of the genus of the antibodies that -- potential
`size. Dr. McDonnell, as an expert, is entitled to explain why
`the potential size of the claimed genus is exceedingly large --
`THE COURT: I agree. I agree. You can have the
`
`slide.
`
`MS. LEE: Thanks so much.
`Before we sit down, I think there's one exhibit issue
`that Lilly wanted to bring to the attention to the Court. It
`is exhibit, Trial Exhibit 5210. So just -- and based on the
`understanding, Teva objected to Trial Exhibit 5210.
`In Lilly's position, we believe that this is a summary
`exhibit that is admissible under the Rule 1006. Teva seems to
`object to this as an exhibit because this is in absence from
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`Case 1:18-cv-12029-ADB Document 611 Filed 11/14/22 Page 22 of 179
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`22
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`the expert report, but this is not opinions of Dr. McDonnell,
`but it's a matter of the charts and the table that underpins
`Dr. McDonnell's ultimate opinion. And other courts -- many
`courts across the jurisdiction recognize that while the expert
`reports themselves may not be admissible, the charts or the
`table that provide the analysis that underpins the expert's
`opinion should be admissible under the Rule 1006. So there are
`a couple of cases that speak to it, your Honor, that I can also
`hand over.
`MS. DAUGHTREY: Your Honor, I think one of the issues
`with this exhibit that she's referring to, the 5210, is it
`wasn't on Lilly's exhibit list. They sent it to us on Saturday
`night.
`
`THE CLERK: All rise for the jury.
`(Jury enters.)
`THE COURT: Can someone get me copies of the slides we
`were just talking about, 22...
`THE CLERK: You can be seated.
`THE COURT: I just ruled on 28.
`Good morning, everybody. This ten minutes later is on
`me. I got here at ten past 9:00. I had to give them their
`full half hour, I had to push it.
`Lilly ready to call its witness?
`MR. LIPSEY: Yes, your Honor.
`Lilly calls as its next witness by video deposition
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`Case 1:18-cv-12029-ADB Document 611 Filed 11/14/22 Page 23 of 179
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`23
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`Dr. Arnon Rosenthal.
`Dr. Rosenthal was deposed on July 30, 2021, and he
`testified live in this case on October 19, 2022. Dr. Rosenthal
`is a named inventor on the patents-in-suit. The video should
`last about eight and a half minutes. It will refer to
`Deposition Exhibit 23, which has been marked as PTX 1991,
`Deposition Exhibit 41, which has been marked as TX 3172, and
`Deposition Exhibit 66, which has been marked as TX 3321. And
`we ask that those be admitted into evidence.
`THE COURT: Any objection?
`MR. KLINE: No objection, your Honor. Sorry.
`THE COURT: They're admitted.
`(Exhibits PTX 1991, TX 3172, TX 3321 received into
`evidence.)
`ARNON ROSENTHAL, Ph.D., having been duly sworn was
`examined and testified as follows:
`(Video recording played.)
`(Beginning of video text.)
`87:24 Q Will you take out Rosenthal Exhibit 23,
`88:1 please, which, for the record, appears to be a
`88:2 September 12, 2003 communication from Zymed
`88:3 Laboratories to Drs. Zeller and Rosenthal, bearing
`88:4 production numbers TEVA_FREM_2236564 through 6571.
`88:8 - 88:16
`88:8 (Exhibit 23 was marked.)
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`Case 1:18-cv-12029-ADB Document 611 Filed 11/14/22 Page 24 of 179
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`88:9 BY MR. LIPSEY:
`88:10 Q You can see, Dr. Rosenthal, that the first
`88:11 page of the letter is actually the second page of
`88:12 the exhibit. It's labeled page 1 at the right-hand
`88:13 corner.
`88:14 Do you see that it's addressed to you and
`88:15 Dr. Zeller?
`88:16 A Yes.
`89:3 - 89:15
`89:3 BY MR. LIPSEY:
`89:4 Q Do you see in the indented subparagraph 2,
`89:5 there's a comment made "the upstream portion of the
`89:6 peptide that you initially suggested, by itself
`89:7 alone, consists mainly a good stretch of the
`89:8 hydrophobic, the least desirable beta-sheet
`89:9 structure (antibody production-wise)."
`89:10 Do you see that?
`89:11 A I see that.
`89:12 Q Okay. And when you turn to page 2 of the
`89:13 letter, which is actually page 1 of the exhibit, you
`89:14 can see that Zymed is proposing, in fact, to use
`89:15 full-length peptides; correct?
`89:17 - 89:24
`89:17 THE WITNESS: It's not clear to me who is
`89:18 this email from, but there's "four full-length
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`Case 1:18-cv-12029-ADB Document 611 Filed 11/14/22 Page 25 of 179
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`89:19 peptides are to be used."
`89:20 BY MR. LIPSEY:
`89:21 Q And Zymed Laboratories was the company you
`89:22 went to initially to make antibodies against CGRP;
`89:23 correct?
`89:24 A Probably, yes.
`132:6 - 132:9
`132:6 Q Would you take out Rosenthal Exhibit 41,
`132:7 please, which, for the record, is an email string
`132:8 with Pfizer production numbers PFE11222 - 23, and
`132:9 the LLY-GALCA numbers 718870 - 71.
`132:17 - 132:19
`132:17 BY MR. LIPSEY:
`132:18 Q Do you have the document?
`132:19 A Yes.
`132:20 - 134:2
`132:20 Q The last complete email on the first page
`132:21 is from Dr. Pons to you dated September 1, 2004.
`132:22 Do you see that?
`132:23 A Yes.
`132:24 Q And Dr. Pons w
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