Case 1:23-cv-00089-TSK Document 100-5 Filed 02/14/24 Page 1 of 4 PageID #: 4244
`Case 1:23-cv-00089-TSK Document 100-5 Filed 02/14/24 Page 1of 4 PagelD #: 4244
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`EXHIBIT 5
`EXHIBIT 5
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`Case 1:23-cv-00089-TSK Document 100-5 Filed 02/14/24 Page 2 of 4 PageID #: 4245
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`Griffin, Renee
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`From:
`Sent:
`To:
`
`Cc:
`Subject:
`
`Fogel, Louis E. <LFogel@jenner.com>
`Thursday, February 8, 2024 12:14 PM
`Kayali, Kathryn; bspann@tcspllc.com; dgriffith@tcspllc.com; Van Horn, Shaun M.;
`Mascherin, Terri L.
`Eylea; Eylea Biosimilars; DL_FYB203Internal
`RE: MDL No. 3103: In re Aflibercept Patent Litigation
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`Counsel,
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`We reject your request to serve unredacted copies of excerpts of Formycon’s Detailed Statement pursuant to 42 U.S.C. §
`262(l)(3)(B) or information contained therein on outside counsel for other defendants. As you acknowledge, Formycon
`designated its § 262(l)(3)(B) contentions as confidential information pursuant to the parties’ August 23, 2023 Section
`262(l) Confidentiality Agreement and § 262(l)(1). Pursuant to the Confidentiality Agreement, only Regeneron’s
`Authorized Evaluators may view Formycon’s confidential information. And pursuant to § 262(l)(1)(D), such confidential
`information “shall be used for the sole and exclusive purpose of determining, with respect to each patent assigned to or
`exclusively licensed by the reference product sponsor, whether a claim of patent infringement could reasonably be
`asserted if the subsection (k) applicant engaged in the manufacture, use, offering for sale, sale, or importation into the
`United States of the biological product that is the subject of the application under subsection (k).” Regeneron’s JPML
`reply clearly falls outside the scope of that sole and exclusive purpose for using Formycon’s confidential
`information. And nothing about the statement in our JPML opposition suggests a waiver of Formycon’s rights with
`respect to its confidential information.
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`As such, any disclosure or use of Formycon’s confidential information in connection with Regeneron’s JPML reply would
`constitute a violation of the parties’ Confidentiality Agreement and § 262(l)(1), for which Formycon would be entitled to
`seek immediate injunctive relief. Formycon reserves all rights with respect to the confidentiality of its § 262(l)(3)(B)
`contentions.
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`Best regards,
`Louis
`
`
`From: Kayali, Kathryn <KKayali@wc.com>
`Sent: Wednesday, February 7, 2024 4:15 AM
`To: bspann@tcspllc.com; dgriffith@tcspllc.com; Fogel, Louis E. <LFogel@jenner.com>; Van Horn, Shaun M.
`<SVanHorn@jenner.com>; Mascherin, Terri L. <TMascherin@jenner.com>
`Cc: Eylea <Eylea@wc.com>; Eylea Biosimilars <Eylea.Biosimilars@weil.com>
`Subject: MDL No. 3103: In re Aflibercept Patent Litigation
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`External Email - Do Not Click Links or Attachments Unless You Know They Are Safe
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`Counsel,
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`In your MDL opposition brief, you stated that your defenses differ from the defenses raised by other Defendants
`(Amgen, Celltrion, Samsung Bioepis, Mylan and/or Biocon). We therefore assume you reviewed the defenses
`asserted by other Defendants or otherwise conferred regarding their content. Please confirm that you therefore
`agree to Regeneron’s service of unredacted copies of excerpts of Formycon’s contentions pursuant to 28 U.S.C.
`§ 262(l)(3)(B) (or information contained therein) on outside counsel for each of the other Defendants, which
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`Case 1:23-cv-00089-TSK Document 100-5 Filed 02/14/24 Page 3 of 4 PageID #: 4246
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`will be included as part of Regeneron’s JPML reply. Any such material will be filed under seal or redacted and
`not visible to the public. To the extent your position differs as to Formycon’s infringement contentions and
`Formycon’s invalidity contentions, please so specify. In the absence of agreement, we will need to serve
`outside counsel only with redacted copies of Regeneron’s reply.
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`
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`In the alternative, if your client does not consider its contentions to be confidential, please let us know so that
`we may dispense with the sealing process.
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`Best,
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`Kat
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`Kathryn S. Kayali
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`Williams & Connolly LLP
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`680 Maine Avenue S.W., Washington, DC 20024
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`(P) 202-434-5644 | (F) 202-434-5029
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`kkayali@wc.com | www.wc.com
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`This message and any attachments are intended only for the addressee and may contain information that is privileged and
`confidential. If you have received this message in error, please do not read, use, copy, distribute, or disclose the contents of the
`message and any attachments. Instead, please delete the message and any attachments and notify the sender immediately. Thank
`you.
`
`
`Louis E. Fogel
`
`Jenner & Block LLP
`353 N. Clark Street, Chicago, IL 60654-3456 | jenner.com
`+1 312 923 2661 | TEL
`+1 312 989 6834 | MOBILE
`LFogel@jenner.com
`Download V-Card | View Biography
`
`
`CONFIDENTIALITY WARNING: This email may contain privileged or confidential information and is for the sole use of the intended recipient(s). Any unauthorized
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`Case 1:23-cv-00089-TSK Document 100-5 Filed 02/14/24 Page 4 of 4 PageID #: 4247
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`use or disclosure of this communication is prohibited. If you believe that you have received this email in error, please notify the sender immediately and delete it
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