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
`
`PROTECTIVE ORDER MATERIAL
`
`

`

`1 potter
`i
`r Anderson
`5‘
`CO r FOO n | 4
`
`1313 North Market Street
`
`P.O. Box 951
`V‘fllmington, DE 19801— 0951
`302 984 6000
`\\'\\'\\‘. potteranderson com
`
`Bindu A. Palapura
`Partner
`Attorney at Law
`bpalopuro@potteronderson.com
`302 984-6092 Direct Phone
`302 6584 I92 firm Fox
`
`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
`Wihnington, DE 19801
`
`Re:
`
`Bayer Intellectual Property GmbH v. Taro Pharmaceutical Industries, Ltd.
`C .A. No. 17—462 OKGA)
`
`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,
`Plaintifl‘s”) September 18, 2018 letter to the Court. Plaintiffs’ request for additional briefing on a
`claim term that has already been construed by this Comt 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 J1me 22, 2018. Plaintiffs set forth detailed ar unents in $11
`011 of their
`
`ro osed construction,
`
`
`P amt1 s
`
`argued that this construction was the express definition of “rapid-release tablet” contained in the
`Indeed, Plaintiffs argued no less than 25 separate times in their briefs that their
`specification.
`proposed constluction was the express definition of “ra id—release tablet.” Plaintiffs had a full
`
`and fair oiortlmii to iresent their construction.—
`
`On July 3, 2018, this Corut issued its Markman Order. The Corut considered the parties’
`arguments, reviewed the intrinsic evidence, and adopted Plaintiffs’ own lexicography, construing
`the term “rapid-release tablet” in US Patent No. 9,539,218 (“the ’218 patent”) to mean “a tablet
`
`which, according to the USP release method usin a
`value 30
`minutes of 75%.” See BI 91 at l.
`
` Plaintiffs
`
`PROTECTIVE ORDER MATERIAL
`
`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 fruther for the meaning of the phrase.” D.I. 82 at 4.
`Thus, Plaintiffs’ argument that the Court’s adoption of Plaintiffs’ construction is somehow
`rmclear or vague is disingenuous.
`
`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 entirely consistent with its
`position in the pending inter partes review. Plaintiffs ma not now seek a do-over of the ve
`construction the ar
`ed for and obtained
`
`Plaintiffs made a strategic choice— to avoid the unfavorable outcome
`that they faced in proceedings which invalidated the Eru'opean counte art to the ’218
`atent.
`The must now live with the conse uence of that choice
`
`
`
`
`
`
`Plaintiffs should not receive a second bite at the apple simply because they did not fully consider
`the repercussions of their proposed construction. Plaintiffs “should be bormd by the litigation
`decisions they ma[d]e.” Reckitt Benckiser Pharms. Inc, et a]. 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 Comt’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 ’1 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. Lon-Ann, Inc. v.
`ninteros, 176 F. 3d 669, 677 3d. Cir. 1999 . Neither of
`
`
`these considerations is
`resent here.
`
`
`
`
`P amtr
`s’ request or a
`trona
`rre mg on a c arm term t at
`as
`
`already been fully briefed and construed by the Court is unsupported and should be denied.
`
`Respectfully,
`
`/s/ Bindu A. Palapura
`
`Bindu A. Palapura
`
`BAP/me/5936096t'44258
`
`cc:
`
`Clerk of the Court (via hand delivery)
`Counsel of Record (Via electronic mail)
`
`1 Plaintiffs incorrectly assume the parties are in agreement regarding the meaning of a “Q value.”
`Rather than prematurely address Plaintiffs’ assertion here, Mylan will address this issue during
`expert discovery.
`
`PROTECTIVE ORDER MATERIAL
`
`0003
`
`