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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________________________
`WOCKHARDT BIO AG, et al. )
` ) Case Nos.
` Petitioners, )
` ) IPR2015-01813
` ) IPR2015-01814
` v. ) IPR2015-01815
` ) IPR2015-01816
`JAZZ PHARMACEUTICALS, INC. ) IPR2015-01818
` ) IPR2015-01820
` Patent Owner. ) (P.T.A.B.)
`___________________________________)
`
` TELECONFERENCE
`
` September 14, 2015 - 3:00 p.m.
` Motion for Joinder
` BEFORE:
` BRIAN P. MURPHY,
` Administrative Patent Judge
` JACQUELINE WRIGHT BONILLA,
` Administrative Patent Judge
` SUSAN L. MITCHELL,
` Administrative Patent Judge
`
`---------------------------------------------------
` DIGITAL EVIDENCE GROUP
` 1726 M Street NW, Suite 1010
` Washington, DC 20036
` (202) 232-0646
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`Wockhardt 1033
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`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________________________
`WOCKHARDT BIO AG, et al. )
` ) Case Nos.
` Petitioners, )
` ) IPR2015-01813
` ) IPR2015-01814
` v. ) IPR2015-01815
` ) IPR2015-01816
`JAZZ PHARMACEUTICALS, INC. ) IPR2015-01818
` ) IPR2015-01820
` Patent Owner. ) (P.T.A.B.)
`___________________________________)
`
` TELECONFERENCE
`
` September 14, 2015 - 3:00 p.m.
` Motion for Joinder
` BEFORE:
` BRIAN P. MURPHY,
` Administrative Patent Judge
` JACQUELINE WRIGHT BONILLA,
` Administrative Patent Judge
` SUSAN L. MITCHELL,
` Administrative Patent Judge
`
`---------------------------------------------------
` DIGITAL EVIDENCE GROUP
` 1726 M Street NW, Suite 1010
` Washington, DC 20036
` (202) 232-0646
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
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`202-232-0646
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`A P P E A R A N C E S:
`
` QUINN EMANUEL URQUHART & SULLIVAN, LLP
` Attorneys for Patent Owner
` 51 Madison Avenue
` New York, New York 10010
` BY: F. DOMINIC CERRITO, ESQ.
`
` MADDOX EDWARDS PLLC
` Attorneys for Amneal
` Pharmaceuticals, LLC
` 1900 K Street, N.W.
` Washington, D.C. 20006
` BY: STEVEN MADDOX, ESQ.
`
` ARENT FOX LLP
` Attorneys for Par
` Pharmaceuticals, Inc.
` 1717 K Street, N.W.
` Washington, D.C. 20006.
` BY: AZIZ BURGY, ESQ.
`
` DUANE MORRIS LLP
` Attorneys for Wockhardt Bio AG
` 100 High Street
` Boston, Massachusetts 02110
` BY: LAURA A. VOGEL, ESQ.
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` P R O C E E D I N G S
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` JUDGE MURPHY: I am Judge Murphy,
` with me on the line we have Judges
` Bonilla and Mitchell.
` Today we are going to conduct our
` conference call in IPR 2015-01813 through
` 1816-1818, 1820, six cases are titled
` Wockhardt Bio AG versus Jazz
` Pharmaceuticals and these case related to
` six earlier cases, between Amneal and Par
` and Jazz Pharmaceuticals numbered IPR
` 2015-545 through 548, 551 and 554 and all
` of these cases involve the same patents.
` So let's start with appearances.
` May I have appearances for
` Petitioners, beginning with Petitioner
` Wockhardt Bio, then Petitioners Par and
` Amneal.
` MS. VOGEL: Hello, Your Honor, this
` is Laura Vogel for Wockhardt from Duane
` Morris LLP.
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` JUDGE MURPHY: Good afternoon,
` Ms. Vogel, thank you.
` How about Par and Amneal?
` Good afternoon, Your Honor, this
` is.
` MR. BURGY: Aziz Burgy from the
` firm of Arent Fox on behalf of Par
` Pharmaceutical, Inc.
` JUDGE MURPHY: Mr. Burgy,
` welcome.
` MR. MADDOX: Good afternoon, this
` is Steve Maddox from the firm Maddox
` Edwards on behalf of Amneal.
` JUDGE MURPHY: Mr. Maddox, good
` afternoon.
` How about for patent owner?
` MR. CERRITO: Good afternoon,
` Your Honor, Your Honor Nick Cerrito from
` Quinn Emanuel Urquhart & Sullivan on
` behalf of Jazz.
` JUDGE MURPHY: Mr. Cerrito, good
` afternoon.
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` Okay, before we proceed, does
` anyone have a court reporter on the line?
` Patent owner?
` MS. VOGEL: Wockhardt does have a
` court reporter on the line.
` JUDGE MURPHY: Okay, Ms. Vogel,
` that's fine.
` When the proceeding is concluded,
` please circulate the transcript and have
` it filed at your earliest convenience,
` okay?
` MS. VOGEL: Yes, sir.
` JUDGE MURPHY: All right, Ms.
` Vogel, let me start with you.
` So you saw the Board's e-mail from
` last week in response to your request to
` the pending joinder motions.
` So my first question is have you
` had a chance to discuss your proposals in
` the joinder motions with counsel for each
` of the Petitioners?
` MS. VOGEL: Yes, we have, Your
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` Honor.
` We have had individual phone
` conversations and today we had a formal
` meet and confer with all of the parties.
` We believe that we narrowed the
` joinder issue with respect to the patent
` owner's opposition to the joinder, but we
` were unable to reach agreement with Amneal
` and Par on that issue.
` JUDGE MURPHY: Okay.
` Have you considered a scheduling
` order, for example in each of these
` proceedings in your proposals to the
` Petitioners?
` MS. VOGEL: Whether we would
` change the scheduling order?
` JUDGE MURPHY: Yes, if anyone
` needed a timing accommodation.
` MS. VOGEL: We were not looking
` to seek a timing accommodation with
` respect to our joinder given the nature
` of the joinder request.
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` JUDGE MURPHY: Okay.
` And I just wanted to confirm, as I
` read the motions, Wockhardt has stated
` that it filed identical petitions on the
` substantive issues as were previously
` filed by Par and Amneal, is that correct?
` MS. VOGEL: Correct, with respect
` to -- with the exception of any
` challenges that were not taken up by the
` Board, those were omitted from the
` declarations and the petition.
` JUDGE MURPHY: Right, understood.
` So your petitions are limited to
` the issues or the grounds on which we
` instituted these proceedings, but
` otherwise the petitions are identical on
` the merits of those issues?
` MS. VOGEL: Yes.
` JUDGE MURPHY: All right.
` Well, let me start with Mr. Cerrito
` then for patent owner.
` So, Mr. Cerrito, why don't you tell
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` me where you are at and how the issue has
` been narrowed and what's troubling you or
` what issue remains from your perspective.
` MR. CERRITO: Well, Your Honor, I
` believe that there is no issues from our
` perspective as currently proposed by
` Wockhardt.
` We do not object to their joinder
` under the provisions that they file the
` exact same document and won't enter any
` evidence, we don't change any timelines;
` we have no objection.
` I believe the objection is coming
` from Par and Amneal, and maybe I can let
` them state their own objection.
` JUDGE MURPHY: Sure.
` Before I move on then, Mr. Cerrito,
` let me just ask you, if patent owner
` needed to file a preliminary response or
` responses to these petitions filed by
` Wockhardt, given Ms. Vogel's
` representation that the issue that's been
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` raised there or issues in each of the
` cases is identical to what's already been
` filed, how long do you think you might
` need to get a preliminary response on
` file?
` MR. CERRITO: Well, Your Honor,
` we had not contemplated filing separate
` preliminary responses to those
` submissions at this time.
` Your Honor, if they are exactly the
` same, we observe the rules going forward,
` so we would just -- we would put our
` response into the current schedule.
` JUDGE MURPHY: Okay, all right,
` that's great.
` So basically the patent owner is
` willing to collapse the right, if you
` will, to file a preliminary response and
` simply go forward as a joined proceeding
` under the current schedule.
` Mr. Cerrito, are you okay with the
` timing of the current schedule?
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` MR. CERRITO: Yes, Your Honor.
` I guess I should have caveated
` this, if the joinder is made, then of
` course we agree, if there is no joinder,
` then I guess we would have to have a
` different discussion.
` JUDGE MURPHY: Right, understood.
` MR. CERRITO: Thank you, Your
` Honor.
` JUDGE MURPHY: Thank you, Mr.
` Cerrito.
` For Amneal and Par, Mr. Burgy, Mr.
` Maddox, any way you want to proceed.
` Does one of you want to speak for
` both parties, or one at a time?
` Whichever order suits you is fine
` with me.
` MR. MADDOX: This is Mr. Maddox.
` If we may do one at a time, judge.
` JUDGE MURPHY: Of course, okay.
` Mr. Maddox for Amneal, go ahead.
` MR. MADDOX: Yes, excuse me.
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` We recognize that this is highly
` discretionary and that there is frankly no
` previous opinion out there that compels
` you to do one thing or another here, and
` you can frankly do anything you want to do
` under your authority, and of course we
` understand that.
` We do not wish to have our filings
` combined and to coordinate our filings
` beyond the Par and Amneal group that's
` been working together now for almost a
` year.
` And we don't want to do that, but
` if, as Wockhardt says, they have their own
` experts and so forth and so on, I don't
` see how we could object, or even would
` object to them proceeding with their
` experts, as long as it doesn't delay the
` schedule we have got.
` And frankly it could even be
` tweaked along the way, but as long as it
` doesn't extend, we are fine with that.
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` We do think it makes it more
` cumbersome, but it's their choice.
` But that's essentially where we
` come out.
` There are a couple of things here
` that maybe should have some further
` consideration.
` This is not a situation where if we
` were to settle -- and I should back up.
` As the court may know, this has all
` happened in the context of a large number
` of patent challenges that's currently
` pending in District Court, and frankly not
` moving very quickly.
` JUDGE MURPHY: Yes, we understand
` that that litigation is pending in New
` Jersey, right?
` MR. MADDOX: Yes, I'm sorry, I
` apologize.
` And Wockhardt has only within the
` last few months, in fact as the last
` challenger in line to some extent, instead
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` of line jumping the thing, which if the
` process allows it, the process allows it,
` but we have invested a great deal, many
` other Defendants have not in the IPRs as
` much as Amneal, and there is an element
` that my client is less than happy, but
` certainly they could come in and force
` their way of coming in and taking all the
` benefit of that, but be that as it may;
` it's certainly within their power, but we
` do not want to be on the same briefs with
` them and we don't want to share our
` expert.
` JUDGE MURPHY: Par.
` Well, understood, I mean look, let
` me say a couple of things and then I think
` I will go to Ms. Vogel for a response.
` But these cases are already fairly
` complex and they are kind of right in our
` wheelhouse for joining proceeding, given
` the representations and proposals that
` counsel for Wockhardt has made.
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` One of them, as I understand it, is
` Wockhardt is going to rely on or adopt, if
` you will, proposes to adopt Amneal and
` Par's papers, Amneal and Par's expert
` witness testimony, and basically is
` willing to take a secondary role so as not
` to complicate the proceeding.
` I can understand why that might rub
` your client the wrong way.
` Have you asked counsel about cost
` sharing or an alternative procedural
` mechanism that might solve this problem
` without complicating the issues and
` allowing the cases to be joined?
` MR. MADDOX: Mr. Maddox again.
` There was some discussion shortly
` before they filed their motion, and we
` basically asked them what they thought
` along those lines, and they told us and
` about as strong as it got, an e-mail back
` was we would consider sharing costs going
` forward, and there was a disagreement
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` about the costs to date.
` So the answer is there was some
` discussion of it, we have never even got a
` firm commitment on going forward, and
` frankly we are not terribly interested in
` having briefs written by a committee of
` three.
` JUDGE MURPHY: No, understood,
` understood.
` Ms. Vogel, why don't I ask for your
` response on this particular point that Mr.
` Maddox has raised, what's Wockhardt's
` position?
` MS. VOGEL: Well, with respect to
` Mr. Maddox's statement that we have our
` own expert, your assessment of our brief
` was accurate in that we were planning to
` adopt the expert declaration that was
` filed on behalf of Amneal and Par going
` forward, however we do have our own
` expert and we have also made substantial
` investments in this, in these IPRs.
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` Leading up to the filing of our IPR
` and joinder papers, we were in active
` negotiations with the Amneal and Par to
` enter into a joint defense agreement and a
` cost sharing agreement, and we have not
` foreclosed the possibility that that
` would -- that we can come to some sort of
` an agreement.
` However, the deadline was looming
` and so we had to move forward.
` Given the requirements for
` identical filings and in the interests of
` judicial efficiency, we filed according to
` the rules and according to the case law
` that is currently in force.
` So I wouldn't say that we
` necessarily will not come to an agreement,
` we hope to.
` At this time Wockhardt's position
` is that we would take a secondary role, we
` would not ask to file any additional
` concurrent briefing unless there were some
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`202-232-0646
`
`Wockhardt 1033
`
`
`
`9/14/2015
`
`Wockhardt Bio AG v. Jazz Pharmaceuticals, Inc.
`
`Teleconference
`
`Page 17
` material change or some procedure action
` that we felt was highly detrimental to
` Wockhardt, and in that case we would ask
` the Board for permission to file a very
` short statement just to articulate our
` position on that.
` But --
` JUDGE MURPHY: Understood, I mean
` that's how I understood it.
` So if I am understanding correctly,
` Wockhardt is not asking for the right to
` have any input into the Petitioner Amneal
` and Par's expert declaration, testimony, I
` guess to the extent it's in a reply
` declaration, what have you, and they are
` not asking for the right to have any input
` into the Petitioner's reply paper.
` MS. VOGEL: Not at this time.
` I'm sorry.
` JUDGE MURPHY: No, that's fine,
` sometimes it's hard on these calls.
` And so what I hear I think Mr.
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`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`Wockhardt 1033
`
`
`
`9/14/2015
`
`Wockhardt Bio AG v. Jazz Pharmaceuticals, Inc.
`
`Teleconference
`
`Page 18
` Maddox saying is look, Amneal and Par have
` an arrangement, they are doing the work,
` they are paying for it, you want to get
` the benefit of it, they don't want anyone
` else having any say in that; and so let's
` take that point first.
` Is Wockhardt comfortable, if we
` were to join these cases, not having any
` say in what Par and Amneal file, but
` simply adopting it in essentially a
` separate paper that says we adopt all of
` the evidence and arguments presented by
` Par and Amneal?
` MR. CERRITO: Your Honor, this is
` Mr. Cerrito.
` If I might, just because I have
` heard a couple of things now that make me
` a little troubled.
` JUDGE MURPHY: Sure, go ahead,
` Mr. Cerrito.
` MR. CERRITO: I apologize for
` interrupting.
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`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`Wockhardt 1033
`
`
`
`9/14/2015
`
`Wockhardt Bio AG v. Jazz Pharmaceuticals, Inc.
`
`Teleconference
`
`Page 19
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` JUDGE MURPHY: That's okay.
` MR. CERRITO: Your Honor, our
` agreement to joinder was based upon no
` new evidence, no declarations, no new
` experts, with no caveat that some day
` there might be.
` If that's the case, then we would
` oppose joinder.
` Either they are all in with the
` current filings, or they are not.
` And for that to change at some date
` in the future because I forgot the
` representation, material change, which we
` won't know of until after the fact, that
` now prejudices us.
` JUDGE MURPHY: Mr. Cerrito, rest
` easy, because that's not going to
` happen.
` MS. VOGEL: No, that's not.
` JUDGE MURPHY: Ms. Vogel, just to
` make sure we are on the same page, and I
` think Mr. Cerrito and I understand each
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`Wockhardt 1033
`
`
`
`9/14/2015
`
`Wockhardt Bio AG v. Jazz Pharmaceuticals, Inc.
`
`Teleconference
`
`Page 20
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` other in terms of the procedure that's
` being proposed, Wockhardt is agreeing
` not to add anything new, and even if
` they ask for permission for something,
` it will not be easily granted unless
` it's on some minor procedural issue that
` you feel the need to ask for a minor
` response.
` But on the merits, there is not
` going to be anything new.
` MS. VOGEL: Correct, and we were
` not intending to insert our expert at
` any point, unless there were some sort
` of situation where the expert who is in
` the case, for example if there were to
` be a settlement and we were not
` contractually able to proceed with that
` expert, we would potentially have our
` expert adopt the statements of the prior
` expert.
` We would not bring any new
` arguments into the case, we don't intend
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`Wockhardt 1033
`
`
`
`9/14/2015
`
`Wockhardt Bio AG v. Jazz Pharmaceuticals, Inc.
`
`Teleconference
`
`Page 21
` to make any additional material arguments
` and yes, your characterization with
` respect to minor procedural issues is
` correct, and that's what we requested in
` our joinder motion.
` It's simply if there were some sort
` of procedural issue that came up we would
` request leave to file a paper.
` The Board has discretion to grant
` or deny, but other than that, Wockhardt
` does not plan to step into the fray, so to
` speak.
` JUDGE MURPHY: Okay, and --
` MR. CERRITO: Thank you, Your
` Honor, I just wanted to make sure that
` clarification was clear.
` JUDGE MURPHY: Mr. Cerrito, is
` that satisfactory?
` MR. CERRITO: Yes, Your Honor.
` JUDGE MURPHY: All right.
` So, Ms. Vogel, with that being
` said, let me ask you another question,
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`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`Wockhardt 1033
`
`
`
`9/14/2015
`
`Wockhardt Bio AG v. Jazz Pharmaceuticals, Inc.
`
`Teleconference
`
`Page 22
` does that also include -- well, what is
` Wockhardt proposing to do with respect to
` deposition testimony of patent owner's
` expert?
` MS. VOGEL: Wockhardt has not
` requested any additional deposition
` time.
` Wockhardt has asked that we be
` allowed to attend depositions and
` potentially after the Petitioner finishes,
` that Wockhardt would have some time to ask
` questions.
` However, Wockhardt is not asking
` for separate depositions. Wockhardt is
` not asking for separate oral arguments,
` only the possibility of adding on at the
` end if we feel that there is anything that
` was left out of the arguments that was
` already presented to the Board.
` We are not asking for any separate
` discovery, written or oral.
` JUDGE MURPHY: Understood.
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`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`Wockhardt 1033
`
`
`
`9/14/2015
`
`Wockhardt Bio AG v. Jazz Pharmaceuticals, Inc.
`
`Teleconference
`
`Page 23
` Let's come to the nub of the matter
` with respect to cost sharing, to the
` extent you can discuss it without
` disclosing client confidences.
` Is there a deal to be made here to
` satisfy Mr. Maddox and his client, and I
` assume Mr. Burgy and his client of cost
` sharing for the expert witness
` declarations, deposition testimony, et
` cetera?
` MS. VOGEL: Wockhardt is open to
` cost sharing on a going forward basis.
` We feel that the majority of the
` costs lies before us in this action, so
` yes, we are still -- we feel that we are
` still in open negotiations though with
` respect to cost sharing with respect to
` current Petitioners.
` JUDGE MURPHY: All right, so let
` me come back to Mr. Maddox.
` MR. MADDOX: Yes, Your Honor.
` JUDGE MURPHY: So I understand
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`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`Wockhardt 1033
`
`
`
`9/14/2015
`
`Wockhardt Bio AG v. Jazz Pharmaceuticals, Inc.
`
`Teleconference
`
`Page 24
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` it, Wockhardt is proposing to simply
` join, not add any new evidence, no new
` experts, no deposition testimony, unless
` there is time at the end after you and
` Mr. Burgy and your lawyers are finished
` for your clients.
` And essentially they will not have
` any input into your papers.
` They will simply, the way we
` envision this, is have -- if we were to
` join, as proposed, Wockhardt would file a
` one sentence or one paragraph separate
` paper saying we adopt all of the evidence
` and arguments of Petitioners Amneal and
` Par.
` So, would that satisfy your first
` concern about not wanting to have anyone
` influence or have any input into what you
` and your client and Mr. Burgy and his
` client have agreed?
` Is that a satisfactory solution?
` MR. MADDOX: Yes, with respect to
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`Wockhardt 1033
`
`
`
`9/14/2015
`
`Wockhardt Bio AG v. Jazz Pharmaceuticals, Inc.
`
`Teleconference
`
`Page 25
` that aspect of our concern, yes; almost,
` if I may.
` I heard the deposition plans of
` Wockhardt to be a little different than
` you just stated.
` If the record is clear that there
` is no right of Wockhardt to take any
` deposition until and unless both Amneal
` and Par have finished, that's fine.
` But the way it was stated earlier
` it sounded like we were going to be in a
` conference call negotiating time for the
` deposition.
` JUDGE MURPHY: Ms. Vogel, is that
` acceptable?
` MS. VOGEL: Yeah, I don't think I
` said anything to that effect, and, in
` fact, it's also in our brief that we
` would seek time only at the end of any
` deposition if there is time remaining.
` JUDGE MURPHY: Okay, that's how I
` understood it, too.
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`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`Wockhardt 1033
`
`
`
`9/14/2015
`
`Wockhardt Bio AG v. Jazz Pharmaceuticals, Inc.
`
`Teleconference
`
`Page 26
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` MR. MADDOX: Fair enough.
` With that clarification, yes, that
` does address that particular concern; it
` does.
` JUDGE MURPHY: All right, and so
` that leaves the question of expense.
` Does it leave any other open issue
` from your perspective, Mr. Maddox?
` Aside from expense, we will talk
` about that in a second.
` MR. MADDOX: Sure, yeah, I guess
` it's a little -- we seem to be headed to
` them being a party.
` Really just sort of on the outside
` sort of me doing stuff like that and to me
` that would make sense if there were some
` issue which if we settled out, they would
` need this date in order to proceed.
` But we met just a few months ago,
` the bar date isn't until after the current
` hearing date, one wonders if there is
` really any point to this joinder.
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`Wockhardt 1033
`
`
`
`9/14/2015
`
`Wockhardt Bio AG v. Jazz Pharmaceuticals, Inc.
`
`Teleconference
`
`Page 27
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` But that's just a comment.
` In terms of cost that would be the
` next thing, and I mean I think it's a
` fairly candid group here, they say they
` have not foreclosed the possibility that
` we may some day come to an agreement, you
` know and I guess the gauntlet goes down,
` we welcome an agreement.
` We talked to them before but we
` didn't get any more and the fact that they
` ran out of time, so that was that.
` That was their decision to come to
` us as late as they did, I don't think it's
` entirely fortuitous that we ran out of
` time.
` JUDGE MURPHY: Well, Mr. Maddox,
` the bottom line is the whole point of
` joinder is to make the proceeding more
` convenient, Wockhardt has made offers
` and representations and essentially
` offered the conditions that we have
` often required for this type of joinder
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`Wockhardt 1033
`
`
`
`9/14/2015
`
`Wockhardt Bio AG v. Jazz Pharmaceuticals, Inc.
`
`Teleconference
`
`Page 28
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`1
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