Case 1:14-cv-02758-PAC Document 144 Filed 02/24/17 Page 1 of 3
`1 Financial Center
`MINTZ LEVIN
`Boston, MA 02111
`617-542-6000
`617-542-2241 fax
`www.mintz.com
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`David G. Conlin I 617 348 1856 I dgconlin@mintz.com
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`February 24, 2017
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`Hon. Paul A. Crotty
`United States Courthouse
`500 Pearl Street, Room 1350
`New York, NY 10007
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`Re:
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`Kowa Company Ltd., et al. v. Amneal Pharms., LLC, and related case,
`Nos. 14-cv-2758(PAC) and 14-cv-7934(PAC)
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`Dear Judge Crotty:
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`We are writing on behalf of Plaintiffs in response to the letter submitted on February 22'
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`2017 on behalf of Amneal and Apotex ("Defendants" ).'/
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`In their February 22nd letter, Defendants object to the Declaration of Jennifer L. Dereka
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`and accompanying Exhibits A-D ("Dereka Decl."), on the purported basis that it is "undisputed
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`fact that the excerpts are not part of the official trial record." (Defendants' February 22, 2017
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`letter, at p. 1.) It is surprising that Amneal and Apotex would submit their letter filed yesterday
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`without first checking the exhibits and confirming as to whether they actually constituted
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`evidence introduced at trial, or at least conferring with Plaintiffs' counsel.
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`Exhibits A, B, and D contain deposition testimony that is part of the trial record. While
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`the cited testimony was not transcribed in the Court transcript, that cited testimony was presented
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`at trial, in deposition video format. See Trial Transcript at 1286:2-3, 1293:6-10 (Dr. Randall
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`Zusman); 697:7-10, 699:8-11, 711:11-14 (Dr. Anthony Palmieri); and 1044:6-9 (Dr. Jonathan
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`I/
`Please disregard my letter to you which I emailed to Mr. Gonzalez yesterday, which is hereby withdrawn.
`The footnote on page 1 of that letter, in which we indicated that Defendants exceeded the post-trial memorandum
`page limits, was based on a mistaken calculation on our part, based on the ECF pagination. Defendants fully
`complied with the page limit on the post trial memorandum.
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`Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
`BOSTON I LONDON I LOS ANGELES I NEW YORK I SAN DIEGO I SAN FRANCISCO I STAMFORD I WASHINGTON
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`

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`Case 1:14-cv-02758-PAC Document 144 Filed 02/24/17 Page 2 of 3
`Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
`
`Hon. Paul A. Crotty
`February 24, 2017
`Page 2
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`Sessler). The Trial Transcript citations with corresponding deposition transcript citations are set
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`forth below:
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`Exhibit
`A
`A
`A
`B
`B
`B
`D
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`Witness
`Zusman
`Zusman
`Zusman
`Palmieri
`Palmieri
`Palmieri
`Sessler
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`Deposition Excerpt
`101: 5 — 102:7
`104: 8-12
`154: 8-12
`33:22 — 35:16
`148:2-17
`185:16 — 186:17
`60:3 — 61:1
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`Played at Tr.
`1293:6-8
`1293:9-10
`1286:2-3
`697:7-10
`699:8-11
`711:11-14
`1044:6-9
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`Cited in:
`Proposed Findings - ¶ 428
`Proposed Findings - ¶ 464
`Proposed Findings - ¶ 464
`Proposed Findings - ¶ 60
`Proposed Findings - ¶ 59
`Post-Trial Memorandum - p. 12
`Proposed Findings - If 283
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`The above-referenced testimony that was introduced into evidence at trial was
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`specifically identified in the trial record by deposition page and line, and the trial transcript
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`incorporating this deposition testimony is referenced in Plaintiffs' post-trial submissions as
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`identified above.
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`The remaining exhibit, Exhibit C, an excerpt from the deposition of Dr. Roush, is simply
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`an excerpt showing appearances of counsel and the first introductory page of testimony showing
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`who the counsel were and the role they played at the deposition. This exhibit, along with a
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`portion of Exhibit B showing the appearances of counsel at the Palmieri deposition, are
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`referenced in Plaintiffs' post-trial submissions to show who the counsel were at these
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`depositions. See, e.g., Plaintiffs' Post-Trial Memorandum ("Memorandum"), at 5 n. 6.
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`As Plaintiffs pointed out in their post-trial submissions, at trial, Amneal newly
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`characterized its obviousness-type double patenting challenge to the '336 patent based on the
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``953 patent as a supposed "Sawai-only defense." See Trial Tr. at 1504:15-16, 21, 1505:4, 14;
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`Memorandum at 5 n.6, 11; Proposed Findings at ¶61. It was Amneal's counsel, however, who
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`defended Dr. Palmieri's deposition (Amneal's predecessor counsel defending, with present
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`counsel attending), and it was Amneal's counsel who took the deposition of Dr. Roush with
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`

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`Case 1:14-cv-02758-PAC Document 144 Filed 02/24/17 Page 3 of 3
`Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
`
`Hon. Paul A. Crotty
`February 24, 2017
`Page 3
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`regard to obviousness-type double-patenting issues (Amneal's present counsel)). See Dereka
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`Decl., Exh. C. As pointed out in Plaintiffs' post-trial submissions, Sawai's counsel did not even
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`attend the deposition of Dr. Palmieri. See Memorandum at 5 n.6; Dereka Decl. Exhs. A and B.
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`These excerpts showing attendance by Amneal at these depositions were submitted in
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`connection with Plaintiffs' Memorandum and Proposed Findings in connection with Plaintiffs
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`addressing the overall lack of merit of Amneal's obviousness-type double-patenting defense; the
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`lack of credibility of Dr. Palmieri; Amneal's attempt to distance itself from that defense to the
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`extent it relied on the '953 patent; and Amneal's characterization of that defense as it related to
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`the '953 patent as a "Sawai-only defense," when Amneal abandoned that argument at trial.
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`(Trial Tr. at 1504:15-16, 21, 25 — 1505:14.)
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`Plaintiffs respectfully request that the Court deny Defendants' request to strike the
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`referenced Declaration of Jennifer L. Dereka and accompanying Exhibits A-D.
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`Plaintiffs remain available to provide any further information with regard to the above
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`that the Court may find helpful.
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`Thank you very much for your consideration.
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`Respeet u11y
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`David G /Conlin
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`cc:
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`All Counsel of Record
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`