`1201 NORTH MARKET STREET
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`
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`Jblumenfeld®uumcom
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`(302) 658—9200
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`
`September 24, 2018
`
`The Honorable Richard G. Andrews
`United States District Comt for the District of
`
`HIGHLY CONFIDENTIAL —
`PROTECTIVE ORDER MATERIAL
`
`Delaware
`
`844 North King Street
`Wilmington, DE 19801
`
`FILED UNDER SEAL
`
`Re:
`
`Bayer Intellectual Property GmbH v. Tare Pharmaceutical Industries, Ltd.
`C .A. No. 17-462 (RGA)
`
`Dear Judge Andrews:
`
`I write in response to Mylan’s September 21, 2018 letter, D.I. 121, submitted in response
`to Plaintiffs’ September 18 letter, D.I. 120, concerning the recent claim construction dispute that
`has arisen between the parties.
`
`Plaintiffs brought this dispute to the Corut’s attention now to avoid a situation where the
`issue is first disclosed to the Court at trial, and sought guidance as to the Court’s preference
`concerning whether to fluther brief the issue now, or instead to address it at trial. In its response,
`Mylan asserts that additional claim construction briefnig would be “a waste of the parties’ and
`the Comt’s time and resources.” D.I. 121 at 1. However, Mylan then proceeds to present
`detailed arglunents with citations to case law as to why its claim construction position is correct.
`
`Plaintiffs respectfully submit that either the parties should be permitted to brief the issue
`now, or it should be addressed at trial, whichever the Court prefers. Plaintiffs wish to point out,
`however,
`that Mylan’s arglunents concerning the claim construction issue are misplaced.
`Contra
`to M lan’s new assertion, there was no need for the Court’s construction to s eci
`that
`
`
`
`Although Mylan asserts that its IPR
`
`
`Petition is somehow consistent with its crurent position, D.I. 121 at 2, its submission to the PTO
`reflects that this is not the case.
`
`Mylan Pharmaceuticals Inc. v. Bayer Intellectual Property GmbH
`PROTECTIVE ORDER MATERIAL
`IPR2018-01 143
`
`MYLAN — EXHIBIT 1068
`
`
`
`The Honorable Richard G. Andrews
`
`September 24, 2018
`Page 2
`
`As Plaintiffs
`
`pomte out in t en‘ c aim construction rie , t e ’218 patent mcorporates y reference PCT
`04/012897. D.I. 82 at 5 & n.3 (published as WO 2005/060940: English translation in CA 2 547
`113, see D.I. 82 at 5 & n.4; D.I. 58-1 at Exs. B-C.) That application, in turn, defines “rapid-
`release tablets” in a manner identical to the ’218 patent.1 D.I. 82 at 5—6; D.I. 58—1, Ex. C at 5:3-7.
`The defmition in that application also refers to chapter 5.2.2 of its specification as an example of
`what constitutes a rapid-release tablet.
`Id. Chapter 5.2.2 contains a table showing that “[t]he
`amounts of active comporuld released” after 30 minutes in the tablets studied were 92% and 95%
`'
`
`. D.I. 58-1, Ex. C at 1021-6 & Table 1.
`
`Plaintiffs respectfully request the Court’s guidance on how to proceed. We are available
`to discuss this issue further at the Corut’s convenience.
`
`Respectfully,
`
`/s/jacR,@. (Bfumenfillf
`
`Jack B. Blumenfeld (#1014)
`
`JBB/bac
`
`cc:
`
`Clerk of the Court (via hand delivery)
`Cormsel of Record Mylan Pharmaceuticals Inc. (via electronic mail)
`
`1 As the Court observed in its Markman opinion, Mylan never even responded to this argument
`in its claim construction briefmg. D.I. 91 at 2 n. 1.
`
`PROTECTIVE ORDER MATERIAL
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`