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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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` ) CASE NO: 2:15-CV-01455-WCB
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`ALLERGAN, INC.,
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` CIVIL
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`Plaintiff,
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` Washington, DC
`vs.
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`TEVA PHARMACEUTICALS USA, INC., ) Tuesday, August 1, 2017
`ET AL.,
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`Defendant.
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`HEARING
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`BEFORE THE HONORABLE WILLIAM C. BRYSON,
`SENIOR UNITED STATES CIRCUIT JUDGE
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`Continued on Page 2
`APPEARANCES:
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`JONATHAN E. SINGER, ESQ.
`For Plaintiff:
`JUANITA R. BROOKS, ESQ.
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`Fish & Richardson - San Diego
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`12390 El Camino Real
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`San Diego, CA 92130
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`PAULINE M. PELLETIER, ESQ.
`For Teva
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`JOHN C. ROZENDAAL, ESQ.
`Pharmaceuticals:
`MICHAEL E. JOFFRE, ESQ.
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`R. WILSON POWERS, III, ESQ.
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`Sterne Kessler Goldstein & Fox, PLLC
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`1100 New York Avenue NW, Suite 600
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`Washington, DC 20005-3934
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`Digital Recording
`Court Reporter:
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`Exceptional Reporting Services, Inc.
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`Transcriber:
`P.O. Box 18668
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`Corpus Christi, TX 78480-8668
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`361 949-2988
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`Proceedings recorded by electronic sound recording;
`transcript produced by transcription service.
`EXCEPTIONAL REPORTING SERVICES, INC
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`MYLAN - EXHIBIT 1173
`Mylan Pharmaceuticals Inc. et al. v. Allergan, Inc.
`IPR2016-01127, -01128, -01129, -01130, -01131, & -01132
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`(CONTINUED)
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`APPEARANCES FOR:
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`SUSAN E. MORRISON, ESQ.
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`Plaintiff:
`ROBERT M. OAKES, ESQ.
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`Fish & Richardson - Wilmington
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`222 Delaware Avenue, 17th Floor
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`P. O. Box 1114
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`Wilmington, DE 19899-1114
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`JOSEPH A. HERRIGES, ESQ.
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`DEANNA J. REICHEL, ESQ.
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`Fish & Richardson - Minneapolis
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`60 S. Sixth Street
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`3200 RBC Plaza
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`Minneapolis, MN 55402
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`JOHN W. SAMPLES, ESQ.
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`Fish & Richardson - Washington DC
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`1425 K Street NW, Suite 1100
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`Washington, DC 20005
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`CLAIRE A. HENRY, ESQ.
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`Ward Smith & Hill, PLLC
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`1507 Bill Owens Parkway
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`Longview, TX 75604
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`MICHAEL DZWONCZYK, ESQ.
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`Akorn:
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`MARK BOLAND, ESQ.
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`Sughrue Mion, PLLC
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`2100 Pennsylvania Ave NW, Suite 800
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`Washington, DC 20037
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`STEPHEN R. SMEREK, ESQ.
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`InnoPharma:
`JASON C. HAMILTON, ESQ.
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`Winston & Strawn, LLP
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`333 S. Grand Avenue, 38th Floor
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`Los Angeles, CA 90071-1543
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`SHANNON M. DACUS, ESQ.
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`The Dacus Firm, PC
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`821 ESE Loop 323, Suite 430
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`Tyler, TX 75701
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`PETER J. CURTIN, ESQ.
`Famy Care Limited:
`DEANNE M. MAZZOCHI, ESQ.
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`Rakoczy Molino Mazzochi Siwik, LLP
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`6 W. Hubbard Street, Suite 500
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`Chicago, IL 60610
`EXCEPTIONAL REPORTING SERVICES, INC
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`3
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`(CONTINUED)
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`APPEARANCES FOR:
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`Mylan Pharmaceuticals, ANNA G. PHILLIPS, ESQ.
`Mylan, Inc.:
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`Wilson Sonsini Goodrich & Rosati
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`900 S. Capital of Texas Highway
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`Las Cimas IV, 5th Floor
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`Austin, TX 78746-5546
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`DOUGLAS H. CARSTEN, ESQ.
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`WENDY L. DEVINE, ESQ.
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`Wilson Sonsini Goodrich & Rosati
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`12235 El Camino Real, Suite 200
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`San Diego, CA 92130
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`EXCEPTIONAL REPORTING SERVICES, INC
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`Washington, D.C.; Tuesday, August 1, 2017
`(Call to order)
`THE CLERK: All rise.
`THE COURT: Good morning, please be seated.
`MR. SPEAKER: Good morning.
`THE COURT: We're here on motions for summary
`judgment and pretrial conference in Number 2:15-cv-1455 in the
`Eastern District of Texas. We have a lot to cover today so why
`don't we just get started right in. What I want to do first, I
`have some preliminary matters I'd like to attend to, and then
`we'll go into the discussion of the summary judgment motions
`and, if need be, discuss the matters to be taken up as part of
`the pretrial conference. Now, the first order of business is
`to deal with the venue point. We issued an order yesterday
`regarding Mylan's objections -- continuing objections to venue.
`What I'd like to do is have -- and this is my general practice
`in these things, is have counsel for each side up at the
`lectern. By and large, I will conduct proceedings through
`questioning rather than having you make long statements. I've
`read all the papers so I'm familiar with the points being made,
`and I'd like to try to minimize the amount of time of popping
`up and popping down. On this one I don't know that we need to
`do that, but in general let's follow that practice. And let's
`also -- this is more in the nature of a question but -- oh, I
`assume and would prefer to have one counsel for each side
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`arguing each motion. Now, that doesn't mean one person has to
`argue everything. It means that I'd like to hear from one
`party and not multiple parties on each motion. Is that
`consistent with what you intend?
`(No audible response)
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`Very good. So why don't we first then have Mylan's
`position on venue?
`MS. DEVINE: Good morning, your Honor, Wendy Devine
`on behalf of Mylan. Mylan has chosen to waive the venue
`objection.
`THE COURT: Okay, you're waiving the objection to
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`venue.
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`MS. DEVINE: Correct.
`THE COURT: Okay, I think that solves that problem.
`MS. DEVINE: Thank you.
`THE COURT: Is there any -- is there -- let me ask
`this question. Ms. Devine, just a moment. I find myself
`sometimes in the awkward position of having not asked the
`question that I should have asked in the midst of someone
`saying they agree to something. So let me ask Allergan's
`counsel if there's anything more that I should be asking with
`respect to the question of whether the waiver is -- whether
`you're satisfied with the waiver. What I -- obviously what I
`don't want to have happen is to have this issue pop up again
`later. I mean, if -- I want us to be on the same page, we're
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`going forward with everybody, venue is out of the case.
`Ms. Devine, that's your position, correct?
`MS. DEVINE: That is Mylan's position, correct.
`THE COURT: All right, any reservations about the
`breadth of that waiver?
`MR. SPEAKER: No, your Honor, I would only say just I
`assume out of the case means it's not on appeal either or
`they're reserving their right to argue on appeal because the
`motion was --
`THE COURT: Well, I'll ask that question but I
`certainly would understand that if it's waived, it's waived for
`purposes --
`MR. SPEAKER: That's my understanding.
`THE COURT: -- it's not just of the district court
`but also for appeal.
`MS. DEVINE: That's our understanding.
`THE COURT: Okay, fine. Okay, that's enough said on
`that. Now, you've given me helpfully some paper on the
`question of representative claims, what claims we're dealing
`with -- oh, let me add one other thing before I go any farther.
`Because this proceeding is being recorded and we don't have a
`live court reporter, if you would identify yourself at the
`beginning of each time you speak, it gets a little monotonous,
`I know, but it helps the court reporter immensely; because
`while he or she may soon learn your voices, it's -- at the
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`outset at least it's difficult. So let's try to do that. I
`often forget that but I think they recognize my voice at least.
`Okay, on representative claims, as I say, you've been
`-- it's been very helpful. I just want to make sure again that
`we're all on the same page here. The objective is to make sure
`that this matter is dispositive of the entire dispute between
`the parties. Now, I understand that there's a difference
`between the one -- the 271(e)(2) infringement claim and
`potentially down the road if it comes to that potential (a)
`claims and (b) claims. But for purposes of the Hatch-Waxman
`Act proceeding before us, these claims, these representative
`claims, we are all agreed, I take it, will be the dispositive -
`- will dispose of all the disputes between the parties. I
`don't want to find us, ourselves, after this saying, oh, well,
`but we still have the following invalidity arguments, we still
`have the following infringement arguments, we still have the
`following claims. Now, am I -- do I correctly understand that
`the parties agree that the 13 representative claims will
`dispose of the dispute in this case?
`MS. BROOKS: Good morning, your Honor, Juanita Brooks
`on behalf of Allergan, --
`THE COURT: Right.
`MS. BROOKS: -- and that is certainly our
`understanding, now that the parties seem to have a meeting of
`the mind that these are indeed not just reduced claims but
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`representative claims of all of the claims in the various
`patents, including all the unasserted claims. So any remedy
`that your Honor might enter as to the representative claims
`would apply equally to the unasserted claims.
`THE COURT: Okay. Now, there was one -- maybe this
`isn't an ambiguity but it is one fill up that I wanted to tie
`down. And there's a reference I think in maybe your paper to
`the two patents as to which there are no representative claims
`among the 13. Those patents, if I understand it, are covered
`by the representative claims as well; is that correct?
`MS. BROOKS: Actually, your Honor, what we've done is
`we've dropped them completely, including the claims that were
`asserted, and we're giving a covenant not to sue.
`THE COURT: Okay, well, --
`MS. BROOKS: So they're now (indisc.)
`THE COURT: -- I think that comes to the same thing
`but I just wanted to make sure that everyone is comfortable
`with that. I mean, we could do it either way, but if that's
`the way you think it's best to proceed, I believe absent
`objection from the opposing counsel, that that solves the
`problem.
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`MR. ROZENDAAL: Your Honor, I believe that that --
`THE COURT: And you --
`MR. ROZENDAAL: Sorry, J. C. Rozendaal --
`THE COURT: Yes, thank you.
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`MR. ROZENDAAL: -- for Teva. I apologize.
`THE COURT: No.
`MR. ROZENDAAL: I believe that that does solve the
`problem for purposes of this case. Obviously the Defendants'
`goal was to have this be dispositive of all of the claims. I
`think I need to note that there are pending IPRs on all of the
`patents and I imagine those are going to go forward on their
`own. I wouldn't imagine that a --
`THE COURT: I don't see how anything that -- well,
`that would happen anyway so I don't see how anything that I
`would or could do in the realm of trying to corral claims is
`going to have an effect on that.
`MR. ROZENDAAL: That was our understanding. We just
`are trying to avoid surprise.
`THE COURT: Okay, well, hearing no further objection
`from any other party, then I think we're good to go with the 13
`claims; no counterclaims beyond the 13 and that's what we're
`going to try. Very good.
`MS. BROOKS: Thank you.
`THE COURT: Okay, a third preliminary matter is the -
`- let me make sure that I've got everything here. Yeah, the
`problem of sealing, this seems to come up in every case that
`I've handled in the district court. Frankly, there's a
`disconnect between the inclinations and incentives, I guess I
`would say, of the lawyers and the dictates of the courts that
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`instruct me to be very restrictive about sealing matters. You
`all have with respect, for example, to the summary judgment
`motions, there are four motions so there are 16 pleadings, of
`which 14 have been marked "sealed." There are numerous
`exhibits, some which have been marked "unsealed" and some which
`have been marked "sealed." The sealed exhibits include in some
`cases issued patents. You cannot really believe that they
`should be sealed. So my conclusion from this is that people
`are slapping the "sealed" label on anything that is even
`remotely subject to confidentiality. This may be something
`that your clients are insisting on, but I don't want this to
`continue. In fact, I want to undo it. And I want you all to
`be aware that I take this seriously. I recognize that there
`may be some confidential materials that are entitled to
`sealing. But the problem this creates -- it creates a lot of
`problems. First of all, the rules are that we're supposed to
`be extremely restrictive about sealing. But beyond that, when
`I get 14 pleadings, all of which say "sealed," and I'm
`attempting to draft orders in those matters, how am I to know
`what among those various pleadings is confidential? There's no
`way to know. So let me just give an example. And I'd like
`whoever -- I don't know the party that is responsible for this
`but -- and I don't want to sound like a crab on this, but I
`take it seriously. And I issued an order earlier in which I
`tried to express my view on sealing but I'm afraid that order
`EXCEPTIONAL REPORTING SERVICES, INC
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