Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 1 of 173 PageID #: 16691
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`
` ) CASE NO: 2:15-CV-01455-WCB
`
`
`ALLERGAN, INC.,
` )
`
`
`
`
`
`
` )
` CIVIL
`
`
`
`Plaintiff,
` )
`
`
`
`
`
`
` )
` Washington, DC
`vs.
`
`
`
` )
`
`
`
`
`
`
`TEVA PHARMACEUTICALS USA, INC., ) Tuesday, August 1, 2017
`ET AL.,
`
`
`
` )
`
`
` )
`
`
`
`Defendant.
` )
`
`
`
`HEARING
`
`BEFORE THE HONORABLE WILLIAM C. BRYSON,
`SENIOR UNITED STATES CIRCUIT JUDGE
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Continued on Page 2
`APPEARANCES:
`
`JONATHAN E. SINGER, ESQ.
`For Plaintiff:
`JUANITA R. BROOKS, ESQ.
`
`
`
`
`Fish & Richardson - San Diego
`
`
`
`
`12390 El Camino Real
`
`
`
`
`San Diego, CA 92130
`
`
`
`
`
`PAULINE M. PELLETIER, ESQ.
`For Teva
`
`JOHN C. ROZENDAAL, ESQ.
`Pharmaceuticals:
`MICHAEL E. JOFFRE, ESQ.
`
`
`
`
`R. WILSON POWERS, III, ESQ.
`
`
`
`
`Sterne Kessler Goldstein & Fox, PLLC
`
`
`
`
`1100 New York Avenue NW, Suite 600
`
`
`
`
`Washington, DC 20005-3934
`
`
`
`
`
`Digital Recording
`Court Reporter:
`
`Exceptional Reporting Services, Inc.
`
`Transcriber:
`P.O. Box 18668
`
`
`
`
`
`Corpus Christi, TX 78480-8668
`
`
`
`
`
`361 949-2988
`
`
`
`
`
`
`Proceedings recorded by electronic sound recording;
`transcript produced by transcription service.
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`
` ) CASE NO: 2:15-CV-01455-WCB
`
`
`ALLERGAN, INC.,
` )
`
`
`
`
`
`
` )
` CIVIL
`
`
`
`Plaintiff,
` )
`
`
`
`
`
`
` )
` Washington, DC
`vs.
`
`
`
` )
`
`
`
`
`
`
`TEVA PHARMACEUTICALS USA, INC., ) Tuesday, August 1, 2017
`ET AL.,
`
`
`
` )
`
`
` )
`
`
`
`Defendant.
` )
`
`
`
`HEARING
`
`BEFORE THE HONORABLE WILLIAM C. BRYSON,
`SENIOR UNITED STATES CIRCUIT JUDGE
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Continued on Page 2
`APPEARANCES:
`
`JONATHAN E. SINGER, ESQ.
`For Plaintiff:
`JUANITA R. BROOKS, ESQ.
`
`
`
`
`Fish & Richardson - San Diego
`
`
`
`
`12390 El Camino Real
`
`
`
`
`San Diego, CA 92130
`
`
`
`
`
`PAULINE M. PELLETIER, ESQ.
`For Teva
`
`JOHN C. ROZENDAAL, ESQ.
`Pharmaceuticals:
`MICHAEL E. JOFFRE, ESQ.
`
`
`
`
`R. WILSON POWERS, III, ESQ.
`
`
`
`
`Sterne Kessler Goldstein & Fox, PLLC
`
`
`
`
`1100 New York Avenue NW, Suite 600
`
`
`
`
`Washington, DC 20005-3934
`
`
`
`
`
`Digital Recording
`Court Reporter:
`
`Exceptional Reporting Services, Inc.
`
`Transcriber:
`P.O. Box 18668
`
`
`
`
`
`Corpus Christi, TX 78480-8668
`
`
`
`
`
`361 949-2988
`
`
`
`
`
`
`Proceedings recorded by electronic sound recording;
`transcript produced by transcription service.
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`
`Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 2 of 173 PageID #: 16692
`
`2
`
`
`
`(CONTINUED)
`
`APPEARANCES FOR:
`
`
`SUSAN E. MORRISON, ESQ.
`
`
`Plaintiff:
`ROBERT M. OAKES, ESQ.
`
`
`
`
`
`Fish & Richardson - Wilmington
`
`
`
`
`
`222 Delaware Avenue, 17th Floor
`
`
`
`
`
`P. O. Box 1114
`
`
`
`
`
`Wilmington, DE 19899-1114
`
`
`
`
`
`
`JOSEPH A. HERRIGES, ESQ.
`
`
`
`
`
`DEANNA J. REICHEL, ESQ.
`
`
`
`
`
`Fish & Richardson - Minneapolis
`
`
`
`
`
`60 S. Sixth Street
`
`
`
`
`
`3200 RBC Plaza
`
`
`
`
`
`Minneapolis, MN 55402
`
`
`
`
`
`
`JOHN W. SAMPLES, ESQ.
`
`
`
`
`
`Fish & Richardson - Washington DC
`
`
`
`
`
`1425 K Street NW, Suite 1100
`
`
`
`
`
`Washington, DC 20005
`
`
`
`
`
`
`CLAIRE A. HENRY, ESQ.
`
`
`
`
`
`Ward Smith & Hill, PLLC
`
`
`
`
`
`1507 Bill Owens Parkway
`
`
`
`
`
`Longview, TX 75604
`
`
`
`
`
`
`MICHAEL DZWONCZYK, ESQ.
`
`
`Akorn:
`
`MARK BOLAND, ESQ.
`
`
`
`
`
`Sughrue Mion, PLLC
`
`
`
`
`
`2100 Pennsylvania Ave NW, Suite 800
`
`
`
`
`
`Washington, DC 20037
`
`
`
`
`
`
`STEPHEN R. SMEREK, ESQ.
`
`
`InnoPharma:
`JASON C. HAMILTON, ESQ.
`
`
`
`
`
`Winston & Strawn, LLP
`
`
`
`
`
`333 S. Grand Avenue, 38th Floor
`
`
`
`
`
`Los Angeles, CA 90071-1543
`
`
`
`
`
`
`SHANNON M. DACUS, ESQ.
`
`
`
`
`
`The Dacus Firm, PC
`
`
`
`
`
`821 ESE Loop 323, Suite 430
`
`
`
`
`
`Tyler, TX 75701
`
`
`
`
`
`
`PETER J. CURTIN, ESQ.
`Famy Care Limited:
`DEANNE M. MAZZOCHI, ESQ.
`
`
`
`
`
`Rakoczy Molino Mazzochi Siwik, LLP
`
`
`
`
`
`6 W. Hubbard Street, Suite 500
`
`
`
`
`
`
`
`
`
`
`Chicago, IL 60610
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`
`Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 3 of 173 PageID #: 16693
`
`3
`
`
`
`(CONTINUED)
`
`APPEARANCES FOR:
`
`
`Mylan Pharmaceuticals, ANNA G. PHILLIPS, ESQ.
`Mylan, Inc.:
`
`Wilson Sonsini Goodrich & Rosati
`
`
`
`
`
`900 S. Capital of Texas Highway
`
`
`
`
`
`Las Cimas IV, 5th Floor
`
`
`
`
`
`Austin, TX 78746-5546
`
`
`
`
`
`
`DOUGLAS H. CARSTEN, ESQ.
`
`
`
`
`
`WENDY L. DEVINE, ESQ.
`
`
`
`
`
`Wilson Sonsini Goodrich & Rosati
`
`
`
`
`
`12235 El Camino Real, Suite 200
`
`
`
`
`
`San Diego, CA 92130
`
`
`
`
`
`
`
`
`
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 4 of 173 PageID #: 16694
`
`4
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Washington, D.C.; Tuesday, August 1, 2017
`(Call to order)
`THE CLERK: All rise.
`THE COURT: Good morning, please be seated.
`MR. SPEAKER: Good morning.
`THE COURT: We're here on motions for summary
`judgment and pretrial conference in Number 2:15-cv-1455 in the
`Eastern District of Texas. We have a lot to cover today so why
`don't we just get started right in. What I want to do first, I
`have some preliminary matters I'd like to attend to, and then
`we'll go into the discussion of the summary judgment motions
`and, if need be, discuss the matters to be taken up as part of
`the pretrial conference. Now, the first order of business is
`to deal with the venue point. We issued an order yesterday
`regarding Mylan's objections -- continuing objections to venue.
`What I'd like to do is have -- and this is my general practice
`in these things, is have counsel for each side up at the
`lectern. By and large, I will conduct proceedings through
`questioning rather than having you make long statements. I've
`read all the papers so I'm familiar with the points being made,
`and I'd like to try to minimize the amount of time of popping
`up and popping down. On this one I don't know that we need to
`do that, but in general let's follow that practice. And let's
`also -- this is more in the nature of a question but -- oh, I
`assume and would prefer to have one counsel for each side
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`
`Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 5 of 173 PageID #: 16695
`
`5
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`arguing each motion. Now, that doesn't mean one person has to
`argue everything. It means that I'd like to hear from one
`party and not multiple parties on each motion. Is that
`consistent with what you intend?
`(No audible response)
`
`Very good. So why don't we first then have Mylan's
`position on venue?
`MS. DEVINE: Good morning, your Honor, Wendy Devine
`on behalf of Mylan. Mylan has chosen to waive the venue
`objection.
`THE COURT: Okay, you're waiving the objection to
`
`venue.
`
`MS. DEVINE: Correct.
`THE COURT: Okay, I think that solves that problem.
`MS. DEVINE: Thank you.
`THE COURT: Is there any -- is there -- let me ask
`this question. Ms. Devine, just a moment. I find myself
`sometimes in the awkward position of having not asked the
`question that I should have asked in the midst of someone
`saying they agree to something. So let me ask Allergan's
`counsel if there's anything more that I should be asking with
`respect to the question of whether the waiver is -- whether
`you're satisfied with the waiver. What I -- obviously what I
`don't want to have happen is to have this issue pop up again
`later. I mean, if -- I want us to be on the same page, we're
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`
`Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 6 of 173 PageID #: 16696
`
`6
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`going forward with everybody, venue is out of the case.
`Ms. Devine, that's your position, correct?
`MS. DEVINE: That is Mylan's position, correct.
`THE COURT: All right, any reservations about the
`breadth of that waiver?
`MR. SPEAKER: No, your Honor, I would only say just I
`assume out of the case means it's not on appeal either or
`they're reserving their right to argue on appeal because the
`motion was --
`THE COURT: Well, I'll ask that question but I
`certainly would understand that if it's waived, it's waived for
`purposes --
`MR. SPEAKER: That's my understanding.
`THE COURT: -- it's not just of the district court
`but also for appeal.
`MS. DEVINE: That's our understanding.
`THE COURT: Okay, fine. Okay, that's enough said on
`that. Now, you've given me helpfully some paper on the
`question of representative claims, what claims we're dealing
`with -- oh, let me add one other thing before I go any farther.
`Because this proceeding is being recorded and we don't have a
`live court reporter, if you would identify yourself at the
`beginning of each time you speak, it gets a little monotonous,
`I know, but it helps the court reporter immensely; because
`while he or she may soon learn your voices, it's -- at the
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`
`Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 7 of 173 PageID #: 16697
`
`7
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`outset at least it's difficult. So let's try to do that. I
`often forget that but I think they recognize my voice at least.
`Okay, on representative claims, as I say, you've been
`-- it's been very helpful. I just want to make sure again that
`we're all on the same page here. The objective is to make sure
`that this matter is dispositive of the entire dispute between
`the parties. Now, I understand that there's a difference
`between the one -- the 271(e)(2) infringement claim and
`potentially down the road if it comes to that potential (a)
`claims and (b) claims. But for purposes of the Hatch-Waxman
`Act proceeding before us, these claims, these representative
`claims, we are all agreed, I take it, will be the dispositive -
`- will dispose of all the disputes between the parties. I
`don't want to find us, ourselves, after this saying, oh, well,
`but we still have the following invalidity arguments, we still
`have the following infringement arguments, we still have the
`following claims. Now, am I -- do I correctly understand that
`the parties agree that the 13 representative claims will
`dispose of the dispute in this case?
`MS. BROOKS: Good morning, your Honor, Juanita Brooks
`on behalf of Allergan, --
`THE COURT: Right.
`MS. BROOKS: -- and that is certainly our
`understanding, now that the parties seem to have a meeting of
`the mind that these are indeed not just reduced claims but
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`
`Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 8 of 173 PageID #: 16698
`
`8
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`representative claims of all of the claims in the various
`patents, including all the unasserted claims. So any remedy
`that your Honor might enter as to the representative claims
`would apply equally to the unasserted claims.
`THE COURT: Okay. Now, there was one -- maybe this
`isn't an ambiguity but it is one fill up that I wanted to tie
`down. And there's a reference I think in maybe your paper to
`the two patents as to which there are no representative claims
`among the 13. Those patents, if I understand it, are covered
`by the representative claims as well; is that correct?
`MS. BROOKS: Actually, your Honor, what we've done is
`we've dropped them completely, including the claims that were
`asserted, and we're giving a covenant not to sue.
`THE COURT: Okay, well, --
`MS. BROOKS: So they're now (indisc.)
`THE COURT: -- I think that comes to the same thing
`but I just wanted to make sure that everyone is comfortable
`with that. I mean, we could do it either way, but if that's
`the way you think it's best to proceed, I believe absent
`objection from the opposing counsel, that that solves the
`problem.
`
`MR. ROZENDAAL: Your Honor, I believe that that --
`THE COURT: And you --
`MR. ROZENDAAL: Sorry, J. C. Rozendaal --
`THE COURT: Yes, thank you.
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`
`
`Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 9 of 173 PageID #: 16699
`
`9
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`MR. ROZENDAAL: -- for Teva. I apologize.
`THE COURT: No.
`MR. ROZENDAAL: I believe that that does solve the
`problem for purposes of this case. Obviously the Defendants'
`goal was to have this be dispositive of all of the claims. I
`think I need to note that there are pending IPRs on all of the
`patents and I imagine those are going to go forward on their
`own. I wouldn't imagine that a --
`THE COURT: I don't see how anything that -- well,
`that would happen anyway so I don't see how anything that I
`would or could do in the realm of trying to corral claims is
`going to have an effect on that.
`MR. ROZENDAAL: That was our understanding. We just
`are trying to avoid surprise.
`THE COURT: Okay, well, hearing no further objection
`from any other party, then I think we're good to go with the 13
`claims; no counterclaims beyond the 13 and that's what we're
`going to try. Very good.
`MS. BROOKS: Thank you.
`THE COURT: Okay, a third preliminary matter is the -
`- let me make sure that I've got everything here. Yeah, the
`problem of sealing, this seems to come up in every case that
`I've handled in the district court. Frankly, there's a
`disconnect between the inclinations and incentives, I guess I
`would say, of the lawyers and the dictates of the courts that
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`
`Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 10 of 173 PageID #: 16700
`10
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`instruct me to be very restrictive about sealing matters. You
`all have with respect, for example, to the summary judgment
`motions, there are four motions so there are 16 pleadings, of
`which 14 have been marked "sealed." There are numerous
`exhibits, some which have been marked "unsealed" and some which
`have been marked "sealed." The sealed exhibits include in some
`cases issued patents. You cannot really believe that they
`should be sealed. So my conclusion from this is that people
`are slapping the "sealed" label on anything that is even
`remotely subject to confidentiality. This may be something
`that your clients are insisting on, but I don't want this to
`continue. In fact, I want to undo it. And I want you all to
`be aware that I take this seriously. I recognize that there
`may be some confidential materials that are entitled to
`sealing. But the problem this creates -- it creates a lot of
`problems. First of all, the rules are that we're supposed to
`be extremely restrictive about sealing. But beyond that, when
`I get 14 pleadings, all of which say "sealed," and I'm
`attempting to draft orders in those matters, how am I to know
`what among those various pleadings is confidential? There's no
`way to know. So let me just give an example. And I'd like
`whoever -- I don't know the party that is responsible for this
`but -- and I don't want to sound like a crab on this, but I
`take it seriously. And I issued an order earlier in which I
`tried to express my view on sealing but I'm afraid that order
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`
`Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 11 of 173 PageID #: 16701
`11
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`has sort of drifted into the far distant past, at least with
`respect to the summary judgment sealing decisions. But just to
`take an example, I have the most recent filing, I guess it was,
`Document 365, which is Defendants' sur reply to Allergan's
`motion to strike certain prior art in the expert report of
`Dr. Andrew Calman. Now, it's marked "sealed," filed under
`seal. And the question is why? What in this document is
`entitled to be sealed? I mean, are we basically saying put a
`seal on everything unless the judge ultimately says you can't?
`I would like somebody to address that.
`MR. ROZENDAAL: Your Honor, J. C. Rozendaal again for
`Teva. I don't have that particular --
`THE COURT: Well, I have --
`MR. ROZENDAAL: -- file in hand --
`THE COURT: -- an extra copy which I can give you.
`MR. ROZENDAAL: -- but I can -- I have a good guess
`as to what happened. I think that what --
`THE COURT: Okay, I'd like to hear it.
`MR. ROZENDAAL: -- happens is obviously Dr. Calman's
`report contains references to confidential information so the
`report was marked "confidential." Then citations are made to
`the report, and when citations are made to a document that's
`marked "confidential," I think the default treatment of that is
`to seal the document so as to avoid inadvertently -- because,
`of course, we -- it's the other side's confidential information
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`
`Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 12 of 173 PageID #: 16702
`12
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`we're concerned about. We want to avoid inadvertently putting
`that into the public. I suspect that's what happened.
`THE COURT: Yeah, I don't think -- and I'm thumbing
`through this right now -- but I don't think there's actually a
`reference, at least not a quote, from Dr. Calman's report in
`this pleading. And I can understand the excessive caution
`approach to sealing. But it comes into conflict with my duty
`to try to ensure that as much as possible in this case is on
`the public record. Right now somebody opening up the docket
`sheet to see what kind of summary judgment motions would be
`filed would find one motion and a reply, not a response -- the
`response to that motion was sealed -- but a reply brief and
`nothing else. So we've got to do better, and I'm open to
`suggestions. I don't want to impose an unduly burdensome
`regime such as making you go back and redo everything, refile
`everything, if we can avoid it, if there's a way to avoid it.
`But I'm open to suggestions. But I -- my main message is that
`I don't want to see "sealed," "sealed," "sealed," "sealed,"
`"sealed," on everything.
`MR. ROZENDAAL: I may have a suggestion for how to
`solve that but I'm going to let --
`MS. DEVINE: I -- yeah, I just wanted to note that
`the reason that -- this is Wendy Devine for Mylan. The reason
`that we sealed -- we are responsible for that filing -- was
`because it references Allergan's contentions on secondary
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`
`Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 13 of 173 PageID #: 16703
`13
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`considerations, which they had marked "confidential." In an
`abundance of caution, we wanted to make sure we weren't
`inadvertently disclosing their confidential (indisc.)
`THE COURT: Where does it reference the --
`MS. DEVINE: On page three, --
`THE COURT: Yeah.
`MS. DEVINE: -- on that top paragraph.
`THE COURT: Yeah.
`MS. DEVINE: So I do think that --
`THE COURT: Well, I don't see anything there that
`even can remotely justify sealing. You don't either I take it.
`MS. DEVINE: No, not realistically.
`THE COURT: All right.
`MS. DEVINE: It's just an abundance of caution, so I
`don't know what my co-counsel was going to suggest, but one
`thing we could do is go through and work with Allergan to file
`redacted versions.
`THE COURT: Okay, well, this isn't just a historical
`matter, but going forward, for example, we're going to have a
`trial in -- open, if we have a trial, I'm assuming, where the
`motions come out today, but that's going to be in open court.
`Now, I want to have an idea of what the universe of matters
`that really are confidential that are important that are in the
`nature of trade secrets, business, proprietary information that
`is sensitive going in so we don't spend half the time opening
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`
`Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 14 of 173 PageID #: 16704
`14
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`and closing the doors of the courtroom. I'm not going to close
`them and then keep them closed for five days.
`MS. DEVINE: Sure.
`THE COURT: So we really need to bear down on this
`issue and know where we're going. Now, I will entertain -- and
`I want to hear from both sides on this, but I will entertain a
`solution that you may want to suggest that will solve the
`problem with the summary judgment motions, and I will try to
`not do something draconian that makes you do a lot of busy
`work. At this point, you've got other things to occupy your
`time, other than to sit there and mark things. But if there's
`an easier way to do it -- I tell you, I'm not so concerned
`about the exhibits, although sealing the patents seems to me a
`little bit silly. I don't know whose idea that was but that's
`something which we should stop doing. But I'm not so concerned
`with the exhibits as I am with the motions themselves. So as a
`way to accommodate the need not to spend the next three weeks
`going -- combing through all the exhibits, I will not insist
`that the exhibits be reworked for sealing and not sealing. But
`I would like you to do something about the motions, and it may
`be as easy -- as in the case of this sur reply, it may be as
`easy as just saying, let's unseal it, period.
`MS. DEVINE: Sure.
`THE COURT: And as much as you can agree to unseal
`makes less work for you and less heartburn for me. So I would
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`
`Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 15 of 173 PageID #: 16705
`15
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`like you to get together and try to work on minimizing to the
`greatest extent possible the material that needs to be
`excluded. And then if you reach a point that you still think
`there's materials in these motions that needs to be protected,
`then I would like you to resubmit with that redacted from the
`public version. What has been filed already will serve as the
`confidential version so you will only have to file the public
`version. Now, that -- I'm open to suggestions as to whether
`there's an easier way to do it than that, but that strikes me
`right now as the easiest way to proceed.
`MS. DEVINE: Only speaking on behalf of Mylan, that
`will be fine for us.
`THE COURT: All right, do we have --
`MS. DEVINE: And we appreciate only having to do the
`
`briefing.
`
`THE COURT: Well, it's -- yeah, the -- this is
`already -- we're sort of past this and it does seem to me to be
`kind of wasteful. And I don't want to waste your time and your
`client's money on things that are maybe not really to the heart
`of the matter. But I do think that a person coming to this
`matter, looking at the summary judgment motions, deserves more
`than just sealed, sealed, sealed, sealed, sealed. And I need
`to know what I can and can't refer to in an order.
`MS. DEVINE: Understood.
`THE COURT: Okay. This -- by the way, I mean -- and
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`
`
`Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 16 of 173 PageID #: 16706
`16
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`you may already know this, this is an issue that the Court of
`Appeals has struggled with for years and they've now come out
`with a rule which sounds a little odd unless you know the
`history of frustration that the Court has had with sealing and
`confidentially marked briefs, but the rule in the Court of
`Appeals is that you can only have 15 words in a brief that are
`sealed. Now, people will occasionally make motions, but I sat
`on the motions panel for the Court last month and we had
`several motions to increase from 15 words to 80 words, for
`example. And this is the kind of thing that we bought into
`with this limit on sealing. But if we don't, then we have no
`idea how to write an opinion because --
`MS. DEVINE: Sure.
`THE COURT: -- somebody has said the whole brief is
`confidential, or huge swaths of the brief are marked
`confidential. Anyway, all right, enough on that.
`MS. DEVINE: Thank you, your Honor.
`THE COURT: Let me hear from the other side if
`there's any other response on that.
`MR. SINGER: No, your Honor, we fairly regularly file
`redacted versions in other courts, just the Eastern District
`doesn't actually require it. I was talking to Ms. Henry and
`right now they don't require it. They're actually she tells me
`contemplating potentially requiring it in short order. So
`that's the reason --
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`
`Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 17 of 173 PageID #: 16707
`17
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`THE COURT: Well, I thought Judge Gilstrap had a
`standing order on this. I recently issued -- I'm -- I may be
`wrong but I generally remember -- I know I've spoken with him
`about it --
`MR. SINGER: Yeah.
`THE COURT: -- but it's been a problem. It's -- your
`-- this case is not unique, that's --
`MR. SINGER: Yeah.
`THE COURT: -- for sure. And I know there's a
`practice in the Eastern District to seal an awful lot of stuff,
`but it seems to me that's a practice that's (indisc.) being
`reviewed.
`
`MR. SINGER: Yeah, and by the way, for the court
`reporter, it's Jonathon Singer for Allergan. I'm sorry to --
`THE COURT: Yeah, that's --
`MR. SINGER: -- not to mention my name. But we have
`no problem filing redacted versions and meeting and conferring
`with the Defendants to try to get even further than that and
`just dispense with the confidentiality where appropriate.
`So --
`
`THE COURT: If you can dispense altogether, it saves
`you filing a redacted --
`MR. SINGER: Yes, it does.
`THE COURT: -- version because we can just direct the
`Clerk's office to unseal it.
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`
`Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 18 of 173 PageID #: 16708
`18
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`MR. SINGER: Yes, it does.
`THE COURT: All right.
`MR. SINGER: I suspect there will be a few things at
`trial but I think a procedure if your Honor would entertain it
`would be just some advanced notice to your Honor about
`materials that might be discussed in a particular witness's
`testimony that are of the actual nature that you're describing,
`whether trade secret or confidential business information in --
`THE COURT: Fine.
`MR. SINGER: -- that -- if the court would --
`THE COURT: And normally those things don't really
`create a problem with, for example, writing an opinion because
`if this was your -- these were your profits on something in
`2014, it's not something that --
`MR. SINGER: Agreed.
`THE COURT: -- one needs to put in the opinion.
`MR. SINGER: Agreed. And that's not what I'm talking
`about, so it's something more of the nature of maybe current
`manufacturing information (indisc.)
`THE COURT: Oh, yeah, right, but typically those
`kinds of things aren't something that I would need to refer to
`in any kind of order or opinion. So if you identify them with
`specificity, subject to my looking at it and saying, well,
`please, this isn't really -- how -- are you serious about this,
`that's not a problem. But if we just say, this witness is
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`
`Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 19 of 173 PageID #: 16709
`19
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`going to be talking about some confidential matters at some
`point during his three hours of testimony, let's close the
`doors, then I won't go with that.
`MR. SINGER: Agreed, we --
`THE COURT: Okay.
`MR. SINGER: -- will give very specific notice.
`THE COURT: Mr. Rozendaal?
`MR. ROZENDAAL: Your Honor, I just had a question.
`THE COURT: This is Mr. Rozendaal.
`MR. ROZENDAAL: It is Rozendaal, yes, thank you, your
`Honor. Just a question about going forward. I think other
`districts that have redaction rules typically will allow the
`filing to be made under seal initially and then there'll be a
`period of say seven days in which to file a public redacted
`version or to unseal the document. It's hard to confer about
`the document before it's been filed.
`THE COURT: That's right. And anything that you can
`work out along those lines, I won't order anything. There may
`not be that many more pleadings before the -- anything -- we'll
`see.
`
`MR. ROZENDAAL: I'm hoping (indisc.)
`THE COURT: But anything you can work out along that
`line is going to be fine with me. And I think that's a
`sensible resolution. But if some arrangement other than
`precisely what you articulated works better for you, I think
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`
`Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 20 of 173 PageID #: 16710
`20
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`I'm going to be fine with it unless it really is just going
`back to what we have now. Okay, I think we've covered that,
`perhaps overly covered it.
`All right, let me just say by the way, that there was
`a reference I think in an email perhaps to the possibility of
`trying the case here if we have a trial. I don't want to try
`it here for a whole variety of reasons, not the least of which
`is my -- our resources here are just not suitable for
`conducting a lengthy trial. I have conducted hearings here
`which we're fine with as in this case. I've conducted even
`some limited evidentiary matters here. But we don't have a
`courtroom deputy, we don't have the courtroom staff and
`courthouse staff that they have in Marshall. And more
`fundamentally this case was filed in the Eastern District of
`Texas and I think it should be tried there. So we will not be
`moving the case for trial up here. I may have further
`proceedings, depending on what happens with the exhibits, and
`we'll get to that later, but I may have further proceedings
`here, but that will be before the trial.
`Okay, let's move to the motions for summary judgment,
`and we'll just take them in the order in which they were filed.
`I'd like to hear first on the motion to dismiss and for summary
`judgment on 102(f) -- well, summary judgment on 102(f) and
`dismiss for standing. Who's going to be heard on that,
`Mr. Rozendaal?
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`
`Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 21 of 173 PageID #: 16711
`21
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`MR. ROZENDAAL: Yes, thank you, your Honor.
`THE COURT: Mr. Rozendaal, let me just first -- and
`
`you are?
`
`MS. MORRISON: Susan Morrison on behalf of Allergan.
`THE COURT: Ms. Morrison on behalf of Allergan, okay.
`Let me get one thing clear at the outset. As I read the
`Defendants' invalidity contentions, the Defendants are
`asserting a claim of nonjoinder with respect to Dr. Ding but
`are not asserting a claim of misjoinder with respect to the
`named inventors. I'm referencing page -- I think it's 219 of
`the invalidity contentions, which is Docket Number 303-1. Am I
`correct in that assumption?
`MR. ROZENDAAL: That's correct, your Honor. I think
`
`it is --
`
`THE COURT: Okay.
`MR. ROZENDAAL: -- when one looks at the testimony,
`it's -- there are reasons to question whether the named
`inventors ought to have been named, but we're not raising
`(indisc.)
`
`THE COURT: So you're focusing entirely on the
`omission of Dr. Ding as a nonjoinder point.
`MR. ROZENDAAL: Correct, your Honor.
`THE COURT: Okay. Now, for purposes -- let me ask
`another question. For purposes of the 102(f) argument, if it
`is determined that Dr. Ding is and should have been named as an
`EXCEPTIONAL REPORTING SERVICES, INC
`
`
`
`
`Case 2:15-cv-01455-WCB Document 402 Filed 08/09/17 Page 22 of 173 PageID #: 16712
`22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`inventor and is an inventor, then that can be cured under 256
`by an order from the Court in the event of a finding -- now,
`here's where it gets a little tricky -- that Dr. Ding did not
`act with deceptive intent. Is that your understanding of
`section -- of the effect of Section 256?
`MR. ROZENDAAL: Well, your Honor, they -- of course,
`the other side has not yet made its motion for --
`THE COURT: No, I understand, but I'm looking a bit
`down the --
`MR. ROZENDAAL: Yeah.
`THE COURT: -- road here. What I want to do is get
`the lay of the land on this, as you see it.
`MR. ROZENDAAL: Well, I'm not sure that we're
`prepared to concede that Dr. Ding's intent is the only intent
`that's relevant under the circumstances.
`THE COURT: Well, the reason I asked that is because
`looking at the statute and looking at the Pannu case, which is
`one of the ones in which of course the court laid all this out,
`it looks like the reference to deceptive intent focused on the
`omitted inventor. Now, if you -- just -- I'm sure you're
`familiar with Pannu but
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
