IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 17-462-RGA
`(consolidated)
`
`HIGHLY CONFIDENTIAL –
`FILED UNDER SEAL
`
`)))))))))))
`
`BAYER INTELLECTUAL PROPERTY
`GMBH, BAYER AG, and JANSSEN
`PHARMACEUTICALS, INC.,
`
`Plaintiffs,
`
`v.
`
`MYLAN PHARMACEUTICALS INC.,
`
`Defendants.
`
`LETTER TO THE HONORABLE RICHARD G. ANDREWS
`FROM BINDU A. PALAPURA
`
`OF COUNSEL:
`
`Douglas H. Carsten
`Elham Firouzi Steiner
`WILSON SONSINI GOODRICH & ROSATI P.C.
`12235 El Camino Real, Suite 200
`San Diego, CA 92130
`Tel: (858) 350-2300
`
`David M. Hanna
`Kristina M. Hanson
`WILSON SONSINI GOODRICH & ROSATI P.C.
`One Market – Spear Tower, Suite 3300
`San Francisco, CA 94105
`Tel: (415) 947-2000
`
`Dated: September 21, 2018
`5936096 / 44258
`
`David E. Moore (#3983)
`Bindu A. Palapura (#5370)
`Stephanie E. O’Byrne (#4446)
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza, 6th Floor
`1313 N. Market Street
`Wilmington, DE 19801
`Tel: (302) 984-6000
`dmoore@potteranderson.com
`bpalapura@potteranderson.com
`obyrne@potteranderson.com
`
`Attorneys for Defendant Mylan
`Pharmaceuticals Inc.
`
`0001
`
`MYLAN - EXHIBIT 1067
`Mylan Pharmaceuticals Inc. v. Bayer Intellectual Property GmbH
`IPR2018-01143
`
`

`

`1313 North Market Street
`P.O. Box 951
`Wilmington, DE 19801- 0951
`302 984 6000
`www.potteranderson.com
`
`Bindu A. Palapura
`Partner
`Attorney at Law
`bpalapura@potteranderson.com
`302 984-6092 Direct Phone
`302 658-1192 Firm Fax
`
`September 21, 2018
`
`HIGHLY CONFIDENTIAL –
`FILED UNDER SEAL
`
`VIA ELECTRONIC FILING
`The Honorable Richard G. Andrews
`United States District Court for the
` District of Delaware
`844 North King Street
`Wilmington, DE 19801
`
`Re: Bayer Intellectual Property GmbH v. Taro Pharmaceutical Industries, Ltd.
`C.A. No. 17-462 (RGA)
`
`Dear Judge Andrews:
`
`Our firm, along with the firm of Wilson Sonsini Goodrich & Rosati, represents defendant
`Mylan Pharmaceuticals Inc. (“Mylan”) in the above matter. We write in response to Plaintiffs
`Bayer Intellectual Property GmbH, Bayer AG, and Janssen Pharmaceuticals Inc.’s (“collectively,
`Plaintiffs”) September 18, 2018 letter to the Court. Plaintiffs’ request for additional briefing on a
`claim term that has already been construed by this Court has no support in the law and is a waste
`of the parties’ and the Court’s time and resources. In short, Plaintiffs’ request amounts to an
`improper reconsideration motion and should be denied.
`
`Pursuant to the Court’s Scheduling Order (D.I. 20), the parties submitted a Joint Claim
`Construction Brief on June 22, 2018. Plaintiffs set forth detailed arguments in support of their
`proposed construction
`
` Plaintiffs
`argued that this construction was the express definition of “rapid-release tablet” contained in the
`specification. Indeed, Plaintiffs argued no less than 25 separate times in their briefs that their
`proposed construction was the express definition of “rapid-release tablet.” Plaintiffs had a full
`and fair opportunity to present their construction.
`
`
`
`On July 3, 2018, this Court issued its Markman Order. The Court considered the parties’
`arguments, reviewed the intrinsic evidence, and adopted Plaintiffs’ own lexicography, construing
`the term “rapid-release tablet” in U.S. Patent No. 9,539,218 (“the ʼ218 patent”) to mean “a tablet
`which, according to the USP release method using apparatus 2 (paddle), has a Q value (30
`minutes) of 75%.” See D.I. 91 at 1.
`
`
` Plaintiffs
`
`0002
`
`

`

`The Honorable Richard G. Andrews
`September 21, 2018
`Page 2
`
`unequivocally stated that the “express definition governs the claim construction inquiry, and
`there is no need for the Court to search further for the meaning of the phrase.” D.I. 82 at 4.
`
`
`
`
`Moreover, despite Plaintiffs’ assertions to the contrary, Mylan’s claim construction
`position regarding “rapid-release tablet” is irrelevant as it was rejected by Plaintiffs and the
`Court. Notwithstanding, Mylan’s claim construction position is
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`Plaintiffs should not receive a second bite at the apple simply because
` Plaintiffs “should be bound by the litigation
`decisions they ma[d]e.” Reckitt Benckiser Pharms. Inc., et al. v. Watson Labs., Inc., et al., C.A.
`No. 13-1674-RGA (consolidated), D.I. 479 at 5 (D. Del., August 31, 2017).
`
`Re-opening claim construction at this time would not only be improper and highly
`prejudicial to Mylan but also a waste of the Court’s and the parties’ resources. Plaintiffs’ request
`amounts to a belated request for reconsideration. However, such requests are meant to “correct
`manifest errors of law or fact or to present newly discovered evidence.” Celebrate Int’l LLC v.
`Leapfrog Enterprises Inc., et al, C.A. No. 14-261-RGA (D. Del. June 16, 2016) (citing Max’s
`Seafood Café ex re. Lou-Ann, Inc. v. Quinteros, 176 F. 3d 669, 677 (3d. Cir. 1999)). Neither of
`these considerations is present here.
`
`
` Plaintiffs’ request for additional briefing on a claim term that has
`already been fully briefed and construed by the Court is unsupported and should be denied.
`Respectfully,
`/s/ Bindu A. Palapura
`Bindu A. Palapura
`
`BAP/msb/5936096/44258
`cc:
`Clerk of the Court (via hand delivery)
`Counsel of Record (via electronic mail)
`
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`
`0003
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`