`Washington, D.C.
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`Before the Honorable David Shaw
`Administrative Law Judge
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`In the Matter of
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`CERTAIN STRONTIUM-RUBIDIUM
`RADIOISOTOPE INFUSION SYSTEMS,
`AND COMPONENTS THEREOF
`INCLUDING GENERATORS
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`Inv. No. 337-TA-1110
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`COMPLAINANT BRACCO DIAGNOSTICS INC.’S RESPONSES TO
`RESPONDENTS JUBILANT DRAXIMAGE, INC.’S, JUBILANT
`PHARMA LIMITED’S, AND JUBILANT LIFE SCIENCES’
`FOURTH SET OF INTERROGATORIES (No. 68)
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`Pursuant to the United States International Trade Commission’s Rule of Practice and
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`Procedure, 19 C.F.R. §§ 210.27 and 210.29 Complainant Bracco Diagnostics Inc. (“Bracco”), by
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`its attorneys, hereby objects and responds to Respondents Jubilant DraxImage, Inc.’s, Jubilant
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`Pharma Limited’s, and Jubilant Life Sciences’ (collectively “Respondents” or “Jubilant”) Third
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`Set of Interrogatories (No. 68) (the “Interrogatories” or, individually, the “Interrogatory”) to
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`Bracco as follows:
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`PRELIMINARY STATEMENT
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`All Responses are submitted as presently advised, and without prejudice to Bracco’s right
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`to modify, amend, revise, correct, supplement, add to or clarify such Responses at the
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`appropriate time.
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`Bracco has not completed its discovery, investigation, research, and trial preparation.
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`The following Responses are based solely on the information that is presently available and
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`specifically known to Bracco. The following Responses are given without prejudice to Bracco’s
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`JUBILANT EXHIBIT 1031
`Jubilant v. Bracco, IPR2018-01449
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`right to produce evidence of any subsequently-discovered facts. Bracco reserves the right to
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`supplement the following Responses and to change any and all Responses therein as additional
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`facts are ascertained, analyses are made, legal research is completed and contentions are made.
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`Bracco’s Responses are subject to the Protective Order (Order No. 1).
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`By providing responses to these Interrogatories, Bracco does not waive any objections it
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`may have on the grounds of relevance, authenticity, admissibility, attorney-client privilege,
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`attorney work product, and/or any other privilege or immunity. Bracco expressly reserves the
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`right, at any time, to object to the wording, implication, and/or characterization of any response
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`to an Interrogatory. Finally, Bracco’s objections as set forth herein are made without prejudice
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`to Bracco’s right to assert any additional or supplemental objections should Bracco discover
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`additional grounds for such objections.
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`GENERAL OBJECTIONS
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`Bracco responds and objects to Jubilant’s Interrogatories as set forth below. The
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`following General Objections shall be applicable to, and shall be incorporated by reference in,
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`Bracco’s response to each Interrogatory, whether or not mentioned expressly in any particular
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`response. Bracco does not waive any of its General Objections by stating specific responses and
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`objections to any particular Interrogatory or by failing to repeat a General Objection.
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`1.
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`Bracco objects to Jubilant’s Instructions and Definitions to the extent that they
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`attempt to impose upon Bracco any obligations different from or in addition to those imposed by
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`the United States International Trade Commission’s Rules of Practice and Procedure or the
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`Ground Rules in this Investigation. Bracco further objects to Jubilant’s Instructions and
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`Definitions to the extent that they seek to embrace information and/or documentation outside of
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`the possession, custody or control of Bracco.
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`2
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`2.
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`Bracco objects to Jubilant’s Interrogatories to the extent they seek disclosure of
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`information protected by the attorney-client privilege, work-product doctrine or any other
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`applicable privileges. Bracco hereby asserts such privileges and immunities to the extent that
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`they are implicated by each Interrogatory, and excludes privileged and protected information
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`from its responses. Any disclosure of such information is inadvertent and is not intended to
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`waive privilege. An objection asserting that an Interrogatory seeks privileged information
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`should not be construed as a representation that such information exists or existed. Such
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`objection indicates only that the Interrogatory is of such a scope that it could embrace privileged
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`subject matter.
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`3.
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`Bracco objects to Jubilant’s Interrogatories to the extent that they require the
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`premature disclosure of expert testimony and/or expert analysis in advance of their respective
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`deadlines governing this Investigation.
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`4.
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`Bracco objects to Jubilant’s Interrogatories to the extent that they seek
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`information beyond the scope of the United States International Trade Commission’s Rules of
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`Practice and Procedure; seek discovery that is unreasonably cumulative or duplicative; are
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`unduly burdensome and oppressive; and may otherwise be construed to require responses
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`beyond those required by the United States International Trade Commission’s Rules of Practice
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`and Procedure.
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`5.
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`Bracco objects to Jubilant’s Interrogatories to the extent that they seek
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`information and/or documents that are: (i) obtainable by Jubilant from other sources that are
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`more convenient, less burdensome, less expensive; (ii) publicly available or otherwise is readily
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`available to Jubilant; and/or (iii) already in Jubilant’s knowledge, possession and/or control
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`because such information has been produced, or will be produced by Bracco.
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`3
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`6.
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`Bracco objects to Jubilant’s Interrogatories to the extent they seek information
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`not relevant to the issues raised in this Investigation, proportional to the needs of this
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`Investigation, or relevant to the subject matter of this action. Nothing herein shall be construed
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`as an admission by Bracco respecting the admissibility or relevance of any fact, or as an
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`admission of the truth or accuracy of any characterization, description or definition of any kind
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`contained in Jubilant’s Interrogatories.
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`7.
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`Bracco objects to Jubilant’s Interrogatories to the extent that they are vague,
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`ambiguous, overly broad, and/or unduly burdensome.
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`8.
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`Bracco objects to Jubilant’s Interrogatories to the extent the burden or expense of
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`the proposed discovery outweighs its likely benefit, considering the needs of this Investigation,
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`and the importance of the discovery in resolving the issues to be decided by the Commission.
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`9.
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`Bracco objects to each of Jubilant’s Interrogatories as unduly burdensome,
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`insofar as any Interrogatory is cumulative or duplicative of other Interrogatories.
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`10.
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`Bracco objects to Jubilant’s Interrogatories to the extent that they request
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`disclosure of Bracco’s trade secrets or other confidential or proprietary business information.
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`11.
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`Bracco objects to Jubilant’s Interrogatories as being premature to the extent it
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`seeks Bracco’s electronically stored information (ESI) before the parties have negotiated a
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`schedule for the exchange, if any, of ESI.
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`12.
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`Bracco objects to Jubilant’s Interrogatories to the extent that they seek
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`production of information and/or documents in the possession of a third party or otherwise
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`outside of Bracco’s possession, custody or control.
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`13.
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`Bracco objects to Jubilant’s Interrogatories to the extent that they include terms
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`that have not been appropriately defined. The use of such terms renders these Interrogatories
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`unduly vague, ambiguous, and not reasonably susceptible to responses.
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`14.
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`Bracco objects to Jubilant’s Interrogatories to the extent they call for information
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`that is subject to the privacy and/or confidentiality rights of third parties, either in the United
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`States or any foreign country. Bracco will not disclose such information in responding to these
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`Interrogatories, including, for example, clinical and individual patient level data and private
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`information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), or
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`any other applicable privacy laws.
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`15.
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`Bracco objects to Jubilant’s Interrogatories to the extent they are not reasonably
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`limited in time.
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`16.
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`Bracco objects to Jubilant’s Definition of “Bracco Domestic Industry Product(s)”
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`on the grounds overly broad and unduly burdensome to the extent it purports to include any
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`products other than the domestic industry product identified by Bracco. Bracco will construe
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`the term “Bracco Domestic Industry Product” to mean the CardioGen-82® Infusion System,
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`Model 1700 (hereinafter “Model 1700”).
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`17.
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`Bracco objects to each interrogatory, definition, and instruction to the extent that
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`it contains multiple subparts or the definition or instruction renders an interrogatory compound.
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`Such interrogatories constitute separate interrogatories that count toward the limit on
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`interrogatories that Jubilant is permitted to propound. Bracco objects to each and every
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`interrogatory that would exceed such limit.
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`18.
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`Bracco objects to the definitions of “Complainant,” “Bracco,” “you,” and “your”
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`on the grounds that they are overly broad and unduly burdensome to the extent it purports to
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`5
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`include any entity other than the Bracco entity named in this action. Bracco will respond to the
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`Jubilant’s Interrogatories only on behalf of the named Complainant Bracco Diagnostics Inc.
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`19.
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`Bracco objects to the definition of “Bracco Group” on the grounds that it is
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`overly broad and unduly burdensome to the extent it purports to include any entity other than
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`the Bracco entity named in this action. Bracco will respond to the Jubilant’s Interrogatories
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`only on behalf of the named Complainant Bracco Diagnostics Inc.
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`20.
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`Bracco objects to the definition of “Related Patents” on the grounds that it is
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`overly broad and unduly burdensome. Bracco further objects to the definition of “Related
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`Patents” to the extent it purports to include “all issued patents and abandoned or pending patent
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`applications related to the Patents-in-Suit” and “any other U.S. or non-U.S. foreign patents and
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`patent applications that disclose, describe, or claim any invention disclosed, described, or
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`claimed in Patents-in-Suit, or that claim priority from the Patents-in-Suit,” on the grounds that
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`incorporating such terms is neither relevant to the issues raised in this Investigation nor
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`proportional to the needs of this Investigation, and are contrary to the United States International
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`Trade Commission’s Rules of Practice and Procedure.
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`21.
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`Bracco objects to the Definitions Nos. 11–15 to the extent they purport to require
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`Bracco to disclose identifying information beyond what is required by the Federal Rule of Civil
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`Procedure, Commission’s Rules of Practice and Procedure, and Ground Rules issued in this
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`Investigation, or purport to require information that is not within Bracco’s possession, custody,
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`or control.
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`22.
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`Bracco objects to the Definitions Nos. 5, 7–8, and 18 as vague and ambiguous,
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`overly broad, and unduly burdensome to the extent that the definitions (in combination with the
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`individual Interrogatories): (i) seek to encompass information that is neither relevant nor
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`6
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`proportional to the needs of this Investigation; (ii) are not reasonably limited in time or scope;
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`(iii) seek to encompass information not within Bracco’s possession, custody, or control; and/or
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`(iv) seek to encompass information protected from disclosure by the attorney-client privilege,
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`the work product doctrine the common interest privilege, or any other applicable privilege or
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`immunity. Bracco also objects to these definitions to the extent they presume that Bracco has
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`knowledge of each of the persons or entities within the scope of the definitions.
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`23.
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`Bracco gives the following objections and responses without waiving its right to
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`produce evidence at any hearing, or in any other proceeding in this Investigation, of any
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`subsequently-ascertained facts. Bracco provides these objections and responses without
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`admitting or waiving objections to the materiality, relevance, or admissibility in evidence of the
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`matters set forth.
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`24.
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`Bracco’s responses herein are based upon present knowledge, information and
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`belief following its diligent search and reasonable inquiry. Discovery and investigation are
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`ongoing and Bracco reserves its right to amend, correct, supplement, or clarify its answers upon,
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`among other things: further investigation; discovery of additional facts; discovery of persons
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`with knowledge or relevant information; or developments in this Investigation or any other
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`proceeding. Bracco reserves the right to rely on any facts, documents or other evidence that
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`may develop or come to its attention during discovery in this Investigation.
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`SPECIFIC RESPONSES AND OBJECTIONS
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`Without waiving the foregoing General Objections, Bracco further responds and objects
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`to the Interrogatories as follows:
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`INTERROGATORY NO. 68:
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`Describe the level of education, training and experience that
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`You contend was held by a person of ordinary skill in the art at the time of the invention of the
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`subject matter disclosed and claimed in the Asserted Patents.
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`7
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`RESPONSE TO INTERROGATORY NO. 68:
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`Bracco specifically incorporates its general
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`objections herein as if fully set forth in response to this Interrogatory. In addition, Bracco
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`objects to this Interrogatory to the extent that it seeks the premature disclosure of expert
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`testimony and/or expert analysis in advance of the respective deadlines governing this
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`Investigation. Bracco further objects to this Interrogatory to the extent it requires Bracco to
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`perform a legal analysis or reach a legal conclusion. Bracco further objects to this Interrogatory
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`to the extent it seeks information protected by the attorney-client privilege, the work-product
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`doctrine, or any other applicable privilege or immunity. Bracco further objects to this
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`Interrogatory to the extent it seeks information outside of Bracco’s possession, custody, or
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`control. Subject to the aforementioned general and specific objections, Bracco responds as
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`follows:
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`A person of ordinary skill in the art (“POSITA”) at the time of the invention claimed in
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`the Asserted Patents would generally have a graduate degree in medicine and/or in a medical
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`related science, including physics, chemistry, biology, physiology, and/or biophysics, or a related
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`field, and would generally have at least some clinical, research, and/or design experience with
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`respect to Positron Emission Tomography (“PET”) imaging and/or PET imaging systems.
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`Bracco reserves the right to amend or supplement this response as discovery in this
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`matter is ongoing.
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`Dated: August 6, 2018
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`Respectfully Submitted,
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`By: /s/ Mark G. Davis
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`
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`Mark Davis
`Patrick J. McCarthy
`GOODWIN PROCTER LLP
`901 New York Avenue, NW
`Washington, DC 20001
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`8
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`Tel: (202) 346-4090
`Email: markdavis@goodwinlaw.com
`Email: pmccarthy@goodwinlaw.com
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`Scott Bornstein
`Brian J. Prew
`GREENBERG TRAURIG, LLP
`MetLife Building
`200 Park Avenue
`New York, NY 10166
`Tel: (212) 801-9200
`Email: bornsteins@gtlaw.com
`Email: prewb@gtlaw.com
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`ATTORNEYS FOR COMPLAINANT THE
`BRACCO CORPORATION
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`CERTIFICATE OF SERVICE
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`I, Colleen Sphar, hereby certify that on this 6th day of August, 2018, copies of the
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`foregoing were served upon the following parties as indicated:
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`Via Email
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`Via Email
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`Brian Koo
`The Office of Unfair Import Investigations
`U.S. International Trade Commission
`500 E Street, S.W., Suite 401
`Washington, DC 20436
`brian.koo@usitc.gov
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`Counsel for the Office of Unfair Import Investigations
`T. Cy Walker
`Robert L. Hails, Jr.
`Shawnna M. Yashar
`BAKER & HOSTETLER LLP
`1050 Connecticut Ave. NW
`Washington, DC 20036
`Phone: 202-861-1500
`Facsimile: 202-861-1783
`Jubilant-Baker@bakerlaw.com
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`Jared A. Brandyberry
`BAKER & HOSTETLER LLP
`1801 California Street, Suite 4400
`Denver, CO 80202
`Phone: 303-861-0600
`Facsimile: 303-861-7805
`Jubilant-Baker@bakerlaw.com
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`Kevin P. Flynn
`BAKER & HOSTETLER LLP
`312 Walnut Street, Suite 3200
`Cincinnati, OH 45202
`Phone: 513-929-3400
`Facsimile: 513-929-0303
`Jubilant-Baker@bakerlaw.com
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`Theresa Weisenberger
`BAKER & HOSTETLER LLP
`1170 Peachtree Street, NE., Suite 2400
`Atlanta, GA 30309
`Phone: 404-459-0050
`Facsimile: 404-459-5734
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`10
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`Jubilant-Baker@bakerlaw.com
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`Charlie Lyu
`BAKER & HOSTETLER LLP
`Cira Centre
`2929 Arch Street, 12th Floor
`Philadelphia, PA 19104
`Phone: 215-568-3100
`Facsimile: 215-568-3439
`Jubilant-Baker@bakerlaw.com
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`John T. Gallagher
`James F. Harrington
`Hoffmann & Baron, LLP
`6900 Jericho Turnpike
`Syosset, New York 11791
`Telephone: (516) 822-3550
`Facsimile: (516) 822-3582
`jgallagher@hbiplaw.com
`jharrington@hbiplaw.com
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`Counsel for Respondents Jubilant Draximage Inc.,
`Jubilant Pharma Limited, And Jubilant Life Sciences
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`/s/ Colleen Sphar
`Colleen Sphar
`Paralegal
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`11
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