Case 1:19-cv-01681-CFC-SRF Document 64 Filed 09/30/20 Page 1 of 15 PageID #: 2895
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`THE TRUSTEES OF COLUMBIA
`UNIVERSITY IN THE CITY OF NEW
`YORK and QIAGEN SCIENCES, LLC,
`Plaintiffs,
`
`C.A. No. 19-1681-CFC
`
`JURY TRIAL DEMANDED
`
`v.
`
`ILLUMINA, INC.,
`Defendant.
`
`
`
`DEFENDANT ILLUMINA, INC.’S ANSWER TO
`PLAINTIFFS’ MOTION FOR RECONSIDERATION OF THE
`COURT’S CLAIM CONSTRUCTION ORDER
`
`
`
`Of Counsel:
`Edward R. Reines
`Derek C. Walter
`WEIL, GOTSHAL & MANGES LLP
`Silicon Valley Office
`201 Redwood Shores Parkway
`Redwood Shores, CA 94065
`(650) 802-3000
`edward.reines@weil.com
`derek.walter@weil.com
`
`
`
`Steven J. Balick (#2114)
`Andrew C. Mayo (#5207)
`ASHBY & GEDDES
`500 Delaware Avenue, 8th Floor
`P.O. Box 1150
`Wilmington, DE 19899
`(302) 654-1888
`sbalick@ashbygeddes.com
`amayo@ashbygeddes.com
`
`Attorneys for Defendant
`
`Dated: September 30, 2020
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`
`
`Illumina Ex. 1160
`Illumina v. Columbia
`IPR2020-01177
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`

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`Case 1:19-cv-01681-CFC-SRF Document 64 Filed 09/30/20 Page 2 of 15 PageID #: 2896
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`TABLE OF CONTENTS
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`2. 
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`B. 
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`C. 
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`D. 
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`Page
`INTRODUCTION ........................................................................................... 1 
`I. 
`LEGAL STANDARD ..................................................................................... 2 
`II. 
`III.  ARGUMENT ................................................................................................... 2 
`Plaintiffs’ Argument That The Court Committed Legal Error
`A. 
`By Crediting Their IPR Statements Is A Meritless Retread ................. 2 
`Plaintiffs Do Not Deny They Stated That
` Excludes
`1. 
`Two Linkers In Series ................................................................. 2 
`The Court Should Reject Plaintiffs’ Repetitious
`Argument That Important Intrinsic Evidence Is Legally
`Irrelevant ..................................................................................... 3 
`Plaintiffs Belatedly Rely Upon Materials That They Could
`Have Timely Submitted ........................................................................ 5 
`Plaintiffs Fail To Identify Anywhere That Illumina Is
`Promoting A Construction Of
` At Odds With The Court’s
`Construction .......................................................................................... 5 
`The Court Should Reject Plaintiffs’ Argument That The Court’s
`Construction Excludes All Embodiments ............................................. 8 
`The Court Should Reject Plaintiffs’ Repetitious Argument That
`The Singular Does Not Preclude The Plural ......................................... 9 
`The Court Should Reject Plaintiffs’ Repetitious Argument That
`The Court Failed To Consider The Plain Meaning Of Linker ............ 10 
`The Court Should Reject Plaintiffs’ Attempt To Emasculate
`The Court’s Construction .................................................................... 11 
`IV.  CONCLUSION .............................................................................................. 11 
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`E. 
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`F. 
`
`G. 
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`Case 1:19-cv-01681-CFC-SRF Document 64 Filed 09/30/20 Page 3 of 15 PageID #: 2897
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases 
`Am. Piledriving, Inc. v. Geoquip, Inc.,
`637 F.3d 1324 (Fed. Cir. 2011) .............................................................................. 4
`Drumgo v. Dutton,
`Civ. A. No. 14-cv-1134-CFC, 2019 WL 2076785 (D. Del. May 10,
`2019)....................................................................................................................... 2
`
`Galderma Labs., LP v. Amneal Pharms. LLC,
`No. 2019-1021 (Fed. Cir. Mar. 25, 2020) ..........................................................3, 4
`Laitram Corp. v. Morehouse Industries, Inc.,
`143 F.3d 1456 (Fed. Cir. 1998) .............................................................................. 5
`Lifestream Diagnostics, Inc. v. Polymer Tech. Inc.,
`109 F. App’x 411 (Fed. Cir. 2004) ........................................................................ 4
`MedIdea, L.L.C. v. DePuy Orthopaedics, Inc.,
`422 F. Supp. 3d 459 (D. Mass. 2019) .................................................................... 6
`Microsoft Corp. v. Multi-Tech Sys.,
`357 F.3d 1340 (Fed. Cir. 2004) .............................................................................. 4
`Seachange Int’l, Inc. v. C-COR Inc.,
`413 F.3d 1361 (Fed. Cir. 2005) .............................................................................. 4
`TiVo, Inc. v. EchoStar Commc’ns Corp.,
`516 F.3d 1290 (Fed. Cir. 2008) .............................................................................. 9
`X One, Inc. v. Uber Techs., Inc.,
`440 F. Supp.3d 1019 (N.D. Cal. 2020) .................................................................. 4
`
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`Case 1:19-cv-01681-CFC-SRF Document 64 Filed 09/30/20 Page 4 of 15 PageID #: 2898
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`I.
`
`INTRODUCTION
`Plaintiffs’ lengthy reconsideration motion violates two cardinal principles.
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`Plaintiffs repeat losing arguments expressly rejected by this Court. They also rely
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`on belated material they could have timely presented. To try to meet the steep
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`reconsideration standard, Plaintiffs allege the Court “misunderstood their position
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`with respect to linker.” They also allege that the Court’s construction of
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` is a
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`manifest injustice.1
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`In truth, the misunderstanding is Plaintiffs’ and the injustice is Plaintiffs’
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`attempt at a second-bite of the apple. Plaintiffs still refuse to grapple with their own
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`clear-cut insistence in prior IPR proceedings that
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` cannot include a “double
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`linker.” JA0095. Indeed, for the IPR trial, Plaintiffs created an evocative slide
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`precisely to depict an image of two linkers connected in series between the label and
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`the base and emphasize that
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` cannot cover that “double linker.” JA0133. The
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`Court explained that Plaintiffs’ admissions as to the meaning of
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` support its order.
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`D.I. 63-2 at 56:6-11 (“we’ve got the patent owner expressly distinguishing a Y from
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`a Y Y, and expressly distinguishing respectively a single linker to a double linker.”).
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`Plaintiffs state that they “do not take issue with construing ‘
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` ’ as a single
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`linker directly connecting the base to the tag.” D.I. 63 at 1. That should end the
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`1 “Plaintiffs” refers to each plaintiff singularly or both together.
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`matter. But Plaintiffs seek to disfigure this Court’s construction via “clarification”
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`that multiple linkers in series somehow qualify as a single linker. This is inconsistent
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`with their prior, unqualified position that
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` cannot cover a double linker.
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`II. LEGAL STANDARD
`“Motions for reargument or reconsideration may not be used ‘as a means to
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`argue new facts or issues that inexcusably were not presented to the court in the
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`matter previously decided.’” Drumgo v. Dutton, Civ. A. No. 14-cv-1134-CFC (D.
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`Del. May 10, 2019). “A motion for reconsideration is not properly grounded on a
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`request that a court rethink a decision already made.” Id.
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`III. ARGUMENT
`A.
`Plaintiffs’ Argument That The Court Committed Legal Error By
`Crediting Their IPR Statements Is A Meritless Retread
`Plaintiffs Do Not Deny They Stated That
` Excludes Two
`Linkers In Series
`The Court construed
` to be a single linker directly connecting the base to
`
`1.
`
`the tag. D.I. 60 at 1. Plaintiffs do not contest that. D.I. 63 at 1. The Court
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`recognized that Plaintiffs definitively explained in the intrinsic evidence that
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` does
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`not encompass two shorter linkers connected in series:
`
` is
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` The “inventor in a surreply made it about as clear as can be that
`a single linker”
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` “on JA95 your patent owner writes that Illumina’s double linker is
`excluded from the claim, which requires one linker, Y, not two linkers,
`Y Y.”
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` “the Y link being identified as a single link as compared to the Y Y
`double link is important”
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` “we’ve got the patent owner expressly distinguishing a Y from a Y Y,
`and expressly distinguishing respectively a single linker to a double
`linker”
`Tr. 18:1-3, 18:4-6, 20:7-9, 56:9-11 (emphasis supplied).
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`Plaintiffs do not contend the Court misunderstood how they described
`
` or
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`deny that they definitively stated that
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` does not include two linkers connected in
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`series. These admissions thus stand unchallenged. See JA0095, JA0133.
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`2.
`
`The Court Should Reject Plaintiffs’ Repetitious Argument
`That Important Intrinsic Evidence Is Legally Irrelevant
`This Court explained that Plaintiffs’ position in the intrinsic record concerning
`
`the meaning of
`
` is properly considered because it is evidence of how the “inventor
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`understood the patent.” Tr. 56:14-21.
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`Plaintiffs’ response is only that their admissions are legally irrelevant. But
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`this is the same argument they already lost based on the non-precedential, inapposite
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`decision in Galderma Labs., LP v. Amneal Pharms. LLC, 806 F. App’x 1007 (Fed.
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`Cir. 2020). Repetitive argument is improper on reconsideration.
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`Plaintiffs expend only four sentences to support their legal relevance
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`argument and merely argue that their prior intrinsic evidence statements “do not
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`control claim scope” because the PTAB invalidated their claims. D.I. 63 at 12.
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`Plaintiffs ignore the cases cited by Illumina that establish that a patentee’s IPR
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`statements are relevant to claim construction regardless of whether patents are
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`invalidated, the statements are relied upon, or are even disputed by the PTAB. See
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`Am. Piledriving, Inc. v. Geoquip, Inc., 637 F.3d 1324, 1336 (Fed. Cir. 2011) (claim
`
`construction disclaimer even though the “examiner explicitly disagreed”); see also
`
`Lifestream Diagnostics, Inc. v. Polymer Tech. Inc., 109 F. App’x 411, 414-16 (Fed.
`
`Cir. 2004) (“We agree with the district court that arguments deliberately and
`
`repeatedly advanced by the patent applicant in regard to the scope of a claim term
`
`during prosecution may be used for purposes of claim construction even though the
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`Patent Office rejected the arguments.”); Seachange Int’l, Inc. v. C-COR Inc., 413
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`F.3d 1361, 1374 (Fed. Cir. 2005) (“An applicant’s argument made during
`
`prosecution may lead to a disavowal of claim scope even if the Examiner did not
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`rely on the argument.”); Microsoft Corp. v. Multi-Tech Sys., 357 F.3d 1340, 1350
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`(Fed. Cir. 2004) (“We have stated on numerous occasions that a patentee’s
`
`statements during prosecution, whether relied on by the examiner or not, are relevant
`
`to claim interpretation.”); see e.g., X One, Inc. v. Uber Techs., Inc., 440 F. Supp.3d
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`1019, 1043 (N.D. Cal. 2020).
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`Plaintiffs also ignore the problems with Galderma including that it did not
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`even involve claim construction.
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`B.
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`Plaintiffs Belatedly Rely Upon Materials That They Could Have
`Timely Submitted
`Plaintiffs’ untimely exhibits should be stricken. Exhibit 3 is a preliminary
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`IPR response and Exhibit 4 is a supporting declaration, whose content could have
`
`been timely submitted. Exhibit 6 is prior art and Exhibit 7 is a demonstrative exhibit
`
`from March 2019. Plaintiffs’ submission of these materials is belated and
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`prejudicial. If they were timely, Illumina could have responded with counter-
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`evidence and analysis.
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`C.
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`Plaintiffs Fail To Identify Anywhere That Illumina Is Promoting A
`Construction Of
` At Odds With The Court’s Construction
`Plaintiffs argue that Illumina is taking a “diametrically opposite” claim
`
`construction position before the PTAB. This argument is another meritless retread.
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`This Court explained that Plaintiffs’ admissions are not negated by what a
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`PTAB petitioner contends. Tr. 19-20 (“It seems to me that under Phillips, what
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`Illumina said, I question whether it’s even intrinsic evidence, but the point of Phillips
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`is, hey, if you want insight into what the inventor says her own invention is, we go
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`to the prosecution history, and that includes PTAB proceedings.”). The Court’s
`
`conclusion is correct. Laitram Corp. v. Morehouse Industries, Inc., 143 F.3d 1456,
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`1462–63 (Fed. Cir. 1998) (finding “representations of a reexamination requester”
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`were “irrelevant to the construction of the claims”). They “are not the statements of
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`the patent owner, so form no part of the prosecution history; only the statements
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`made by the patent owner do.” See, e.g., MedIdea, L.L.C. v. DePuy Orthopaedics,
`
`Inc., 422 F. Supp. 3d 459, 470 (D. Mass. 2019).
`
`Plaintiffs are wrong on the facts too. Illumina’s position is that there is no
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`patentable distinction between a single and double linker. Illumina is not arguing
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`inconsistently because it never contended that
`
` covers double linkers. To try to
`
`prove otherwise, Plaintiffs rely on four items.
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`First, Plaintiffs rely on Illumina’s statement that “no proposed litigation
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`construction affects the merits of this petition.” D.I. 63 at 4 (citing Ex. 2 at 12). But
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`stating that this Court’s
`
` construction does not affect the merits of the petition is
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`not a contradictory position. Also, Illumina is correct that the construction of this
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`term does not affect the merits of the IPR as the PTAB previously found that the
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`prior art includes the claimed linker whether it is interpreted as “linker or linkers.”
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`Illumina, Inc. v. The Trustees of Columbia University in the City of New York,
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`IPR2018-00291, Paper 67, at 53-54 (PTAB June 21, 2018) (Termination Decision).
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`Second, Plaintiffs rely on their own overbroad construction of
`
` in the IPR
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`submitted after this Court’s construction. This is a self-serving attempt to repudiate
`
`their prior admissions about
`
`. D.I. 63 at 4 (citing Ex. 3 at 6-8). Plaintiffs’
`
`argument that their own IPR claim construction position makes Illumina’s position
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`“diametrically opposed” to this Court’s construction is illogical.
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`Third, Plaintiffs rely on their own IPR expert declaration. D.I. 63 at 4 (citing
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`Ex. 4, ¶ 71). The belated opinion of Plaintiffs’ expert (which was not submitted
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`during claim construction) does not establish that Illumina’s IPR positions are
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`inconsistent with this Court’s construction. It does not even address Illumina’s
`
`construction of
`
`.
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`Fourth, Plaintiffs rely upon Illumina’s invalidity contentions. D.I. 63 at 4
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`(citing Ex. 5 at 35). But the cited page does not include a construction. Merely
`
`because Illumina believes the Plaintiffs’ patents are obvious based on the prior art
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`does not mean that Illumina is contending that
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` encompasses double linkers.
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`Notably, the invalidity contention that Plaintiffs cite is about where the linker is
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`attached to the nucleotide base (and modifications made to the base that facilitate
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`attachment at that location); not the make-up of the linker. In sum, Plaintiffs fail to
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`identify any instance where Illumina construes
`
` inconsistent with this Court’s
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`construction.
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`When you cut through irresponsible overstatement, Plaintiffs’ are attempting
`
`to imply a construction of
`
` from Illumina’s invalidity positions. Plaintiffs
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`improperly assume that because a prior art reference suggests a claim requirement,
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`it must be identical to that requirement. While maybe true for anticipation, it is not
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`true for obviousness. Illumina does not contend that every reference discloses a
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`linker identical to
`
` as this Court has properly construed it. Just because prior art
`
`is identified as suggesting
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`, does not mean it is identical to
`
`. And this is not a
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`significant invalidity issue anyway because there are multiple references that teach
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` exactly.
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`D. The Court Should Reject Plaintiffs’ Argument That The Court’s
`Construction Excludes All Embodiments
`During claim construction, Plaintiffs did not argue that the construction
`
`adopted by the Court would exclude all embodiments. Instead, under the Court’s
`
`questioning, Plaintiffs “best” argument is that there were “three embodiments” that
`
`would not be covered, Figures 7, 8 and 16. Tr. 25:13-18.
`
`The Court identified many embodiments in column 11 within its construction.
`
`Tr. 36:9-14. Plaintiffs never argued that those embodiments would fall outside its
`
`construction. Nor did Plaintiffs challenge this Court’s reasoning that “there’s no
`
`requirement that a claim cover every single embodiment in the patent.” Tr. 56:4-5.
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`Plaintiffs have not offered any excuse for changing their position and there is none.
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`Regardless, Plaintiffs still have not shown that every embodiment would be
`
`excluded. They do not even mention the embodiments identified by the Court.
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`Beyond that, Figure 2A, which Plaintiffs did not even submit, plainly shows a single
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`linker with no double linker structure. D.I. 12-2 at 28.
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`E.
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`The Court Should Reject Plaintiffs’ Repetitious Argument That
`The Singular Does Not Preclude The Plural
`During claim construction, Plaintiffs repeatedly argued that the singular use
`
`of “linker” in the claims does not exclude a double linker. Tr. 31:5; D.I. 54 at 23.
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`Plaintiffs improperly repeat this weak argument.
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`As the Court correctly noted, there is no indefinite article before
`
` in the
`
`claims. Tr. 33:9-12 (“You’re asking me to construe Y and you still have not pointed
`
`to me any instance in the patent where Y is preceded by an article. I just view all of
`
`that case law as inapposite.”).
`
`Regardless, the issue of a singular versus plural construction is heavily
`
`dependent on the particular circumstances at issue. TiVo, Inc. v. EchoStar
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`Commc’ns Corp., 516 F.3d 1290, 1303 (Fed. Cir. 2008) (finding that “whether ‘a’
`
`or ‘an’ is treated as singular or plural depends heavily on the context of its use” and
`
`concluding that “claims and written description in this case make clear that the
`
`singular meaning applies”).
`
`Here, the intrinsic evidence shows definitive statements by the patent owner
`
`that
`
` does not include a double linker. That controls over Plaintiffs’ flawed
`
`attempt to assign heavy weight to “a” even though it is not even present before
`
`
`
`in the claims.
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`Even still, Plaintiffs’ reliance on “a” would not support the construction they
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`propose. The term “a” does not precede “linker” in the claim, but rather “chemically
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`cleavable, chemical linker.” See, e.g., D.I. 12-2 at 71 (claim 1). Plaintiffs attempt
`
`to skip over this issue with ellipses, rather than address it.
`
`Finally, Plaintiffs’ argument is illogical altogether. Plaintiffs themselves do
`
`not take issue with construing
`
` “as a single linker directly connecting the base to
`
`the tag.” D.I. 63 at 1. What does it mean to say there can be other linkers? In
`
`parallel to the linker required by the claim? Even if so, that would not justify having
`
`a double linker in series in lieu of the required “single linker” that Plaintiffs again
`
`request.
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`F.
`
`The Court Should Reject Plaintiffs’ Repetitious Argument That
`The Court Failed To Consider The Plain Meaning Of Linker
`The Court was asked to construe
`, which has no plain meaning. Yet,
`
`Plaintiffs contend that the Court failed to consider the plain meaning of a different
`
`word, “linker,” and should reverse itself.
`
`Plaintiffs once again attempt to rely on the possibility that a linker can
`
`sometimes be made up of two shorter linkers attached together. However, the
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`Court’s original construction considered that very possibility. But Plaintiffs
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`specified in the intrinsic evidence that
`
` cannot include a double linker. It is
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`impossible to square Plaintiffs’ exclusion of double linkers in the intrinsic evidence
`
`with their reconsideration argument that the term “linker” supposedly must include
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`double linkers because of examples of how linker is used in other contexts.
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`Plaintiffs’ plain meaning argument should again be rejected.
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`G. The Court Should Reject Plaintiffs’ Attempt To Emasculate The
`Court’s Construction
`Plaintiffs attempt to reverse the Court’s construction of
`
`, by asking the
`
`Court to misconstrue its construction. Plaintiffs’ request for an interpretation of its
`
`construction of
`
` that permits double linkers cannot be squared with their definitive
`
`statements that
`
` excludes double linkers.
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`IV. CONCLUSION
`Plaintiffs’ reconsideration motion should be denied.
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`Of Counsel:
`Edward R. Reines
`Derek C. Walter
`WEIL, GOTSHAL & MANGES LLP
`Silicon Valley Office
`201 Redwood Shores Parkway
`Redwood Shores, CA 94065
`(650) 802-3000
`edward.reines@weil.com
`derek.walter@weil.com
`Dated: September 30, 2020
`
`
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`Respectfully submitted,
`
`ASHBY & GEDDES
`
`/s/ Steven J. Balick
`
`Steven J. Balick (#2114)
`Andrew C. Mayo (#5207)
`500 Delaware Avenue, 8th Floor
`P.O. Box 1150
`Wilmington, DE 19899
`(302) 654-1888
`sbalick@ashbygeddes.com
`amayo@ashbygeddes.com
`
`
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`Attorneys for Defendant
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`Case 1:19-cv-01681-CFC-SRF Document 64 Filed 09/30/20 Page 15 of 15 PageID #: 2909
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`CERTIFICATE OF COMPLIANCE
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`The undersigned counsel for Illumina, Inc. certify that the foregoing
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`Defendant Illumina, Inc.’s Answer To Plaintiffs’ Motion For Reconsideration Of
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`The Court’s Claim Construction Order complies with the type and number
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`limitations in Section 16 of the Scheduling Order (D.I. 17). The foregoing brief
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`contains 2,318 words (excluding the cover page, table of contents, table of
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`authorities, and the signature block). The brief was prepared using the Times New
`
`Roman typeface in 14-point font.
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`
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`Of Counsel:
`Edward R. Reines
`Derek C. Walter
`WEIL, GOTSHAL & MANGES LLP
`Silicon Valley Office
`201 Redwood Shores Parkway
`Redwood Shores, CA 94065
`(650) 802-3000
`edward.reines@weil.com
`derek.walter@weil.com
`
`
`
`
`
`
`ASHBY & GEDDES
`
`/s/ Steven J. Balick
`
`Steven J. Balick (#2114)
`Andrew C. Mayo (#5207)
`500 Delaware Avenue, 8th Floor
`P.O. Box 1150
`Wilmington, DE 19899
`(302) 654-1888
`sbalick@ashbygeddes.com
`amayo@ashbygeddes.com
`
`Attorneys for Defendant
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