Case 1:22-cv-00061-TSK-JPM Document 315 Filed 02/17/23 Page 1 of 5 PageID #: 17660
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
`AT CLARKSBURG
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`Plaintiff,
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`v.
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`REGENERON PHARMACEUTICALS, INC.,
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`MYLAN PHARMACEUTICALS INC.,
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`Defendant.
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`Civil Action No. 1:22-cv-00061-TSK
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`DEFENDANT MYLAN PHARMACEUTICALS INC.’S MOTION TO STRIKE
`PORTIONS OF REGENERON PHARMACEUTICAL’S, INC.’S MARKMAN
`FINDINGS OF FACT AND CONCLUSIONS OF LAW
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`Defendant Mylan Pharmaceuticals Inc. (“Mylan”), by its undersigned counsel, hereby
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`respectfully moves this Court to strike portions of the proposed findings of fact and conclusions
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`of law of claim construction submitted by Plaintiff Regeneron Pharmaceuticals, Inc. (“Regeneron”
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`or “Plaintiff”) on February 10, 2023.1 (See Ex. A hereto, Proposed Order). The basis for this
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`motion is that in its proposed Markman findings of fact and conclusions of law submission,
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`Regeneron improperly cites to, and relies upon, (1) evidence that was already stricken by the Court
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`on February 6, 2023, (Dkt. No. 298),2 and (2) untimely expert opinions of Dr. Karl Csaky
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`purportedly relating to claim construction.
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`1 Regeneron filed its Findings of Fact and Conclusions and Law of Claim Construction, including the
`contested Exhibit A, with a motion for leave to file under seal on February 10, 2023 (Dkt. No. 305). Mylan
`has no objection to the sealing of the document, given its reference to protected materials.
`2 On January 11, 2023, Regeneron filed an unauthorized “Observations Concerning Post-Briefing
`Depositions of Mylan’s Claim Construction Experts.” (Dkt. No. 226). On January 20, 2023, Mylan moved
`to strike Regeneron’s submission, or in the alternative, for leave to file a response. (Dkt. No. 261).
`Regeneron replied to Mylan’s response on January 23, 2023. (Dkt. No. 262). On February 6, 2023, the
`Court rightfully struck Regeneron’s submission, along with all evidence included therein not otherwise in
`the record. (Dkt. No. 298).
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`1
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`Case 1:22-cv-00061-TSK-JPM Document 315 Filed 02/17/23 Page 2 of 5 PageID #: 17661
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`During the January 24, 2023 Markman hearing, the Court verbally ordered each party to
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`file findings of fact and conclusions of law of claim construction by February 10, 2023. The Court
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`did not authorize, however, either side to submit evidence not already in the record. In its proposed
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`Markman findings of fact and conclusions of law submission, Regeneron included both evidence
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`that had been explicitly stricken by the Court, as well as new expert opinion never part of the claim
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`construction record whatsoever.
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`Consideration of either of Regeneron’s improper inclusions in its proposed Markman
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`findings of fact and conclusions of law of claim construction submission would severely prejudice
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`Mylan. Specifically, should the Court permit Regeneron to include evidence that the Court
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`specifically struck, and overturning a substantial implication of its own February 6, 2023 Order
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`granting Mylan’s motion to strike Regeneron’s “Observations Concerning Post-Briefing
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`Depositions of Mylan’s Claim Construction Experts.” (Dkt. No. 262). Furthermore, it would grant
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`Regeneron an unfair advantage of having the opportunity to cite evidence that was previously
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`stricken, without permitting Mylan to do the same.
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`Next, Regeneron’s inclusion of several pages of Dr. Csaky’s expert report (served weeks
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`after the Markman hearing) in its proposed Markman findings of fact and conclusions of law
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`submission is entirely improper because it provides Regeneron an opportunity to submit rebuttal
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`expert opinions 57 days after the deadline to do so. (Compare Dkt. No. 87 at 2 (responsive claim
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`construction submission due December 15, 2022), with Dkt. No. 305, dated February 10, 2023).
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`Regeneron made the strategic decision to not provide expert declarations in support of its claim
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`construction arguments. Yet, now, almost two months after responsive claim construction briefs
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`have been submitted, Regeneron attempts to insert rebuttal expert opinion into the claim
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`construction record. This extremely late submission prejudices Mylan because it stripped Mylan
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`Case 1:22-cv-00061-TSK-JPM Document 315 Filed 02/17/23 Page 3 of 5 PageID #: 17662
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`the opportunity to address the opinions in the claim construction context through either cross-
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`examination or rebuttal. By comparison, Mylan presented its claim construction experts in full
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`compliance with the Scheduling Order in this case, also making them available for deposition
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`before the Markman hearing. Regeneron did not provide its expert opinion in a timely manner and
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`should not be allowed to circumvent the schedule that it demanded for this case by forcing new
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`evidence into the claim construction record now.
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`For the reasons set forth in Mylan’s corresponding memorandum in support of this motion,
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`Mylan respectfully requests that the Court strike both the improper proposed findings of fact and
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`conclusions of law, as well as the improper and untimely evidence cited in Regeneron’s Markman
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`Findings of Fact and Conclusions of Law. (See Ex. A hereto, Proposed Order).
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`Respectfully submitted this 17th day of February, 2023.
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`Case 1:22-cv-00061-TSK-JPM Document 315 Filed 02/17/23 Page 4 of 5 PageID #: 17663
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`STEPTOE & JOHNSON PLLC
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`/s/ Gordon H. Copland
`Gordon H. Copland (WVSB #828)
`William J. O’Brien (WVSB #10549)
`400 White Oaks Boulevard
`Bridgeport, WV 26330
`(304) 933-8162
`gordon.copland@steptoe-johnson.com
`william.obrien@steptoe-johnson.com
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`Attorneys for Defendant
`Mylan Pharmaceuticals Inc.
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`Of Counsel (admitted pro hac vice):
`William A. Rakoczy
`Deanne M. Mazzochi
`Heinz J. Salmen
`Eric R. Hunt
`Jeff A. Marx
`Neil B. McLaughlin
`Lauren M. Lesko
`RAKOCZY MOLINO MAZZOCHI SIWIK LLP
`6 W. Hubbard St., Suite 500
`Chicago, IL 60654
`(312) 527-2157
`wrakoczy@rmmslegal.com
`dmazzochi@rmmslegal.com
`hsalmen@rmmslegal.com
`ehunt@rmmslegal.com
`jmarx@rmmslegal.com
`nmclaughlin@rmmslegal.com
`llesko@rmmslegal.com
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`Case 1:22-cv-00061-TSK-JPM Document 315 Filed 02/17/23 Page 5 of 5 PageID #: 17664
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`CERTIFICATE OF SERVICE
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`I hereby certify that on the 17th day of February 2023, I served the foregoing
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`“Defendant Mylan Pharmaceuticals
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`Inc.’s Motion
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`to Strike Portions of Regeneron
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`Pharmaceutical’s, Inc.’s Markman Findings of Fact and Conclusions of Law” by filing a true copy
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`of the same with the Clerk of the Court using the CM/ECF system, which will send notice thereof
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`to all counsel of record.
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` /s/ Gordon H. Copland
`Gordon H. Copland (WVSB
`#828)
`William J. O’Brien (WVSB #10549)
`400 White Oaks Boulevard
`Bridgeport, WV 26330
`(304) 933-8162
`gordon.copland@steptoe-johnson.com
`william.obrien@steptoe-johnson.com
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