Teleconference
`
`Case No. IPR2018-01403
`
`April 12, 2019
`
`1
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`UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE
` _____________________
` THE PATENT TRIAL AND APPEAL BOARD
` _____________________
` MYLAN PHARMACEUTICALS, INC.,
` Petitioner
` vs.
` BIOGEN MA, INC.,
` Patent Owner
` _____________________
` Case No. IPR2018-01403
` United States Patent No. 8,399,514
`
` 12:00 p.m.
` April 12, 2019
`
`Before: SHERIDAN K. SNEEDEN and JACQUELINE T. HARLOW,
`Administrative Patent Judges
`
`Reported by: Gail L. Inghram Verbano, BA, CSR, CRR, RDR
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 1 of 23
`
`Biogen Exhibit 2041
`Mylan v. Biogen
`IPR2018-01403
`
`

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`Teleconference
`
`Case No. IPR2018-01403
`
`2
`
`April 12, 2019
`2 (Pages 2 to 5)
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` court reporter, Your Honor.
` JUDGE SNEEDEN: Okay. Thank you. And
` if you would, after the call, if you could submit
` the transcript and enter into the record, that
` would be helpful.
` MS. McCURDY: Be happy to do that, Your
` Honor.
` JUDGE SNEEDEN: Okay. Let's see. So
` Ms. McCurdy, I think you initially requested the
` call. I'll let you begin.
` MS. McCURDY: Thank you. Thank you,
` Your Honor. Biogen requested this call to seek
` your guidance and authorization to get dates from
` Petitioner to cross four of the fact witnesses
` they rely upon in their petition.
` Mylan advised us on April 8th for the
` first time it would not produce certain fact
` witnesses and would not provide dates for others.
` That was 18 days after we requested dates for all
` of their witnesses, had a meet and confer, sent a
` series of unanswered messages asking for dates;
` and immediately afterwards, the next day after
` they told us no, we approached the Board on April
` 9th. That was our message to the Board.
` A second issue we wanted to raise was a
`
`5
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` modification to the schedule to adjust Time
` Periods 1 through 3. Mylan said in a message to
` the Board it opposes that, and I'd like to
` address that, because there's plenty of time in
` the schedule, lots of depositions to take, and
` dates we don't even have for certain witnesses.
` And the expert depositions that are being taken
` are all bunched up at the end of our cross
` period, April 19th, 24th and 26th; and we then
` have about seven business days to file our Patent
` Owner Response.
` So we think it's reasonable and
` appropriate to extend the time period. We
` offered to extend them 13 days for us; we offered
` to extend Mylan for more than that, 14; and
` offered to take two days out of our sur-reply
` period; and Mylan said they'd oppose that. So I
` can address that separately.
` But I'd first like to start with the
` four fact witnesses. These four fact witnesses
` testify about various asserted references and
` other references that Mylan relies on and asserts
` that are prior art publications. It relies upon
` these six Declarants to establish that they are,
` in fact, prior art publications.
`
` A P P E A R A N C E S
`
`On behalf of Petitioner:
` BRANDON M. WHITE, ESQ.
` bmwhite@perkinscoie.com
` EMILY J. GREB, ESQ.
` egreb@perkinscoie.com
` DAVID L. ANSTAETT
` danstaett@perkinscoie.com
` PERKINS COIE, LLP
` 700 13th Street, NW, Suite 600
` Washington, D.C. 20005-3960
` 202.654.6206
`
`For the Patent Owner:
` BARBARA CLARKE McCURDY, ESQ.
` barbara.mccurdy@finnegan.com
` MARK J. FELDSTEIN, Esq.
` mark.feldstein@finnegan.com
` PIER DeROO, Esq.
` pier.deroo@finnegan.com
` FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
` 901 New York Avenue, NW
` Washington, DC 20001
` 202.408.4000
`
`3
` JUDGE SNEEDEN: Good afternoon. This is
` Judge Sneeden. I have with me on the line Judge
` Harlow. This is a teleconference for
` IPR2018-01403.
` Who do I have on the line for
` Petitioner?
` MR. WHITE: Good morning, Your Honor.
` This is Brandon White from Perkins Coie on behalf
` of Mylan. Also with me are Emily Greb and David
` Anstaett.
` JUDGE SNEEDEN: Welcome, Mr. White.
` And who do I have on the line for Patent
` Owner?
` MS. McCURDY: Good morning, Your Honor.
` This is Barb McCurdy for Patent Owner. I'm from
` Finnegan, and I'm here with my colleagues, Mark
` Feldstein and Pier DeRoo.
` JUDGE SNEEDEN: Welcome.
` And do we have a court reporter on the
` line?
` THE COURT REPORTER: Yes. This is Gail
` Verbano.
` JUDGE SNEEDEN: Which party ordered the
` court reporter?
` MS. McCURDY: Patent Owner ordered the
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`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 2 of 23
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`

`

`Teleconference
`
`Case No. IPR2018-01403
`
`April 12, 2019
`3 (Pages 6 to 9)
`8
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` It's Mylan's statutory burden to
` establish that the documents they rely upon are,
` in fact, prior art printed publications under the
` statute 35 USC 311b. And Biogen is entitled to
` cross those witnesses whose testimony Mylan
` relies upon in this regard.
` Biogen has not yet filed its Patent
` Owner Response, but we believe the cross will be
` appropriate because it will examine whether Mylan
` has met its burden in demonstrating that these
` are all printed publications. And we submit
` there are real issues as to whether Mylan can
` demonstrate that. So we would like to take the
` cross-examination of these witnesses.
` I'd like to address them serially. One,
` the first one is Exhibit 1012 in the case. It's
` a Chris Butler from the Wayback Machine. He's
` been deposed in IPRs and CBMs before the Board
` before. He is the only witness to -- that Mylan
` relies upon to show that their exhibits that he
` testified about is, in fact, prior art.
` We think his cross is relevant to
` whether Mylan met its burden to show it's prior
` art, and Mylan has indicated it may request a
` subpoena with respect to him.
`
`7
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` But we think there are real issues to
` probe with respect to Chris Butler, including
` deposition testimony as given before the Board
` where he submitted that not all the things that
` are on that site are actually archived by
` his employer. So we think it's appropriate.
` It's happened before in other proceedings, and
` we'd like to have a date for his deposition.
` Their second is someone called Robert
` Mihail. He is an attorney in another proceeding,
` not in this proceeding, and --
` JUDGE SNEEDEN: What number is that?
` MS. McCURDY: That's Exhibit 1054, and
` it references an Exhibit 1010. 1010 is an
` asserted reference in Ground 4.
` This declarant is from a different
` proceeding. Mylan has submitted and is relying
` upon his testimony. The declarant in his
` deposition says he agrees to be subject to
` cross-examination, but it's not clear he even
` knows his declaration was filed, because it's --
` he's an attorney from a different law firm in a
` completely different proceeding.
` Mylan says they don't have to produce
` him for cross because his testimony was not,
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` quote, prepared for this proceeding, end quote,
` under Rule 42.51(b)(1)(ii) -- but the cases
` support cross of witnesses like this who are
` testifying about whether something is a prior art
` publication, and that's exactly what Mylan is
` using him for. He is their witness to
` demonstrate that that reference, the asserted
` reference in Ground 4, was available at the time
` that they are asserting.
` The two cases that I would cite to
` are -- the one case, IBG v. Trading Technologies,
` is CBM2015-179. In Paper 39, as the Board
` recognized there, Petitioner relies solely on, in
` that case testimony -- Kawashima's testimony --
` to show that the reference was publicly available
` and constitutes prior art; and in that
` circumstance, cross was authorized.
` There's another case where it was not
` granted, but that's -- that was a -- it
` contrasted the situation where the sole evidence
` of the declarant is to show that it's a
` publication.
` And so we think there's support for
` getting a date for his deposition.
` The third witness is Jennifer Rock.
`
`9
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` It's Exhibit 1055. She is from Westlaw --
` JUDGE SNEEDEN: Let me interrupt. I
` think just whether or not -- what is the
` Declarant's name in 1054?
` MS. McCURDY: Mihail, M-I-H-A-I-L.
` JUDGE SNEEDEN: Whether or not he will
` be made available for cross-examination, doesn't
` that just speak to whether or not the declaration
` is routine discovery or additional discovery, and
` if he's not made available for cross-examination,
` that just goes to the weight of the testimony?
` MS. McCURDY: That -- the argument is
` made that it's not routine testimony because it's
` from another proceeding.
` But our position is that they chose to
` rely upon it. They could have done it with their
` own declaration.
` But it raises the real question about
` whether this document is, in fact, available,
` because in a supplemental declaration of Attorney
` Greb, she goes through and explains what Mihail
` did in finding this document, and the document
` she attaches for the reference has a date after
` the relevant date.
` So the -- the -- the document -- now,
`
`202-220-4158
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`www.hendersonlegalservices.com
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`Page 3 of 23
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`

`

`Teleconference
`
`Case No. IPR2018-01403
`
`10
`
` that Greb declaration is not yet of record. It
` was submitted in response to evidentiary
` objections.
` But the question is, if we don't get
` Mihail because it was submitted in another
` proceeding and if we don't get Greb because her
` declaration is not yet of record, when does the
` Patent Owner get a chance to cross-examine the
` witness?
` And as IBG, the case said, when they're
` relying upon declarant -- this is the sole
` testimony to show something is prior art, then we
` should be entitled to probe that and show the
` deficiencies in it.
` So I agree with Your Honor in terms of
` that issue has come up, the question of
` whether -- if it's from another proceeding, it's
` routine, or whether it's -- it's not routine.
` But in the IBG case, it addressed that
` issue and said, You have to supply the witness
` because you're relying upon this witness to show
` that this is prior art and this is your sole
` evidence of it, and that's exactly the
` circumstance we have here.
` JUDGE SNEEDEN: Thank you.
`
`11
` MS. McCURDY: Okay. The Jennifer Rock
` declaration is Exhibit 1055. That relates to
` Westlaw content that -- from 2018. It's dated
` 2018.
` And she presents exhibit -- testimony
` about certain press releases that appear to be
` published by Westlaw. But the question there is,
` there's a real question about what she's
` testifying to, because she simply testifies that
` these exhibits are available now.
` She's not -- I could get into sort of
` what we think the deficiencies are, but the point
` is simply that she was presented as a declarant
` to demonstrate that these press releases are
` prior art publications. And we think we have --
` we should have an opportunity to probe the
` deficiencies in her -- in her declaration to show
` that Mylan has not met its burden to show that
` these particular references they're relying upon
` from Westlaw have not been shown to be printed
` publications.
` And the fourth witness is Mylan attorney
` Ms. Greb. As I mentioned, her declaration was
` filed -- it's not filed in the case. It was
` served as part of objections made by Patent Owner
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`April 12, 2019
`4 (Pages 10 to 13)
`12
` and it was submitted related to those objections,
` so it is not a record in the case.
` But if not now, when do you get to
` depose the witness who is averring to whether
` these documents that are submitted are printed
` publications or not?
` And we submit her -- cross of her is
` also appropriate. As I mentioned, there is a
` discrepancy in -- I'm just giving one example of
` that. Part of her declaration goes through and
` explains what Attorney Robert Mihail did and how
` she retrieved documents from a different
` proceeding -- or she or someone else retrieved
` documents from a different proceeding.
` But the issue we have there is that it
` doesn't go to whether the document itself is
` prior art. There's lack of personal knowledge.
` And between the two, with the Mihail declaration
` on the one reference and then the supplemental
` declaration of Greb that's not yet filed, we
` think we should be able to cross-examine to
` determine whether Mylan has met its burden to
` show that these and all the references are prior
` art printed publications.
` And if we're in a Catch-22, where we
`
`13
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` can't have Mihail because it was from another
` proceeding and we can't take Greb because it's
` not yet filed, when do we get to cross-examine on
` that issue? Those are our points.
` JUDGE SNEEDEN: The issue that these
` witnesses will not be made available for
` deposition, and -- what is your request for us?
` MS. McCURDY: Our request is that you
` tell Mylan to provide dates for us to cross these
` witnesses. They refuse to provide two of the
` witnesses expressly and decline to provide dates
` for the other two.
` JUDGE SNEEDEN: Okay. Understood.
` Anything else, Ms. McCurdy? This is --
` this is -- first start with the issue regarding
` depositions, and then we can move into
` difficulties with the scheduling. Does that
` work, or are they related?
` MS. McCURDY: Sure, yeah, absolutely.
` JUDGE SNEEDEN: All right. Anything
` further?
` MS. McCURDY: No. No, no, that's all,
` Your Honor.
` JUDGE SNEEDEN: All right. Mr. Wright,
` would you like to respond?
`
`202-220-4158
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`Henderson Legal Services, Inc.
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`Page 4 of 23
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`

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`Teleconference
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`Case No. IPR2018-01403
`
`14
`
` MR. WHITE: Certainly.
` So I think we'll start with the Mihail
` declaration. And that was a declaration filed in
` the previous IPR where Biogen counsel was
` representing Biogen on the same patent.
` Mr. Mihail submitted a declaration in
` that case basically explaining how he collected a
` certain document. That same declaration was
` filed in this proceeding. Mr. Mihail does say in
` that proceedings in that prior proceeding, he
` would make himself available. Biogen, for
` whatever reason, chose not to depose him in that
` proceeding when they had an opportunity and now
` they want to do so here.
` We don't think that's appropriate under
` a whole host of cases the Board has previously
` decided. Just one example would be Nestle versus
` Steuben Food, IPR2015-249, Paper No. 107. The
` case stands for the proposition that the
` declarations aren't -- that aren't prepared for
` this proceeding aren't subject to routine
` discovery and cross-examination.
` There are a whole host of cases
` addressing different aspects --
` JUDGE SNEEDEN: But this is -- I think
`
`15
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` these circumstances, it appears that the
` declaration falls under -- does not fall under
` routine discovery. But whether or not the
` witness is made available for cross-examination
` goes to the weight that we give the evidence.
` MR. WHITE: Certainly I would agree that
` Your Honors can weigh the evidence in view of --
` JUDGE SNEEDEN: As long as you
` understand that.
` MR. WHITE: Yeah. And I think that
` particularly -- given the fact that they did not
` choose to depose him in the prior case is
` particularly relevant to that issue.
` Turning -- I guess I could group the
` next two, the Westlaw declarant and the Wayback
` Machine declarant, somewhat together.
` I think it's important to know with
` respect to both of these documents, they address,
` in total, four exhibits. All four exhibits are
` Biogen's own exhibits. They control all of the
` information about when these things were publicly
` disseminated. The Rock declaration addresses
` three Biogen -- three of Biogen's own press
` releases; and the Wayback Machine declaration
` addresses a Fumapharm document -- poster.
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`April 12, 2019
`5 (Pages 14 to 17)
`16
` Fumapharm has been acquired by Biogen several
` years ago.
` So Biogen is in complete control of all
` the information of how these documents were
` disseminated, and they certainly do not need
` discovery to -- if they have a reasonable basis
` to suggest that these are not prior art.
` I think it's almost unheard of to depose
` these type of witnesses. That type of
` questioning came up in Coastal Industries versus
` Shower Enclosures. That's IPR2017-573.
` In that case, Judge Green actually did
` authorize a subpoena to -- for Mr. Butler's
` deposition or motion for a subpoena to be
` followed by Patent Owner. In that case, though,
` there were issues identified about the Wayback
` Machine's discrepancies -- clear discrepancies to
` be investigated. We certainly haven't seen
` anything like that here, particularly with
` Biogen's own documents. We don't think he --
` JUDGE SNEEDEN: Who is that, one more
` time?
` MR. WHITE: The case is Coastal
` Industries versus Shower Enclosures, and it's
` case IPR2017-573.
`
`17
`
` JUDGE SNEEDEN: Do you have a paper
` number?
` MR. WHITE: I do. The transcript is
` Exhibit 1031, and the paper number is 278.
` February 2018.
` Declarants submit what is in effect
` information from their employer's databases. There's
` simply nothing to discover from these witnesses other
` than what they've already stated.
` If Biogen has -- believes what's stated
` isn't sufficient, they can certainly make those
` challenges in a Patent Owner Response. So we don't
` believe routine discovery requires that either of
` those witnesses be made available.
` And then turning to Ms. Greb's declaration,
` Ms. Greb is, of course, on the phone and she is
` counsel for Mylan in this case. She submitted a
` pretty standard response to objections authenticating
` various documents, stating that, "This is a website;
` this is how I obtained it."
` Her declaration, of course, is not of
` evidence -- of record in this case. That
` supplemental evidence is not filed and is not of
` record. We don't think that routine discovery
` authorizes her deposition as well.
`
`202-220-4158
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`Teleconference
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`Case No. IPR2018-01403
`
`April 12, 2019
`6 (Pages 18 to 21)
`20
`
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` I think it's particularly unusual to depose
` witnesses who submit authentication declarations and
` particularly when that witness would be an attorney
` of record in the case. So we don't believe
` Ms. Greb's deposition should be permitted.
` JUDGE SNEEDEN: Okay. Understood.
` Anything further?
` MR. WHITE: Nothing from me, Your Honor.
` JUDGE SNEEDEN: Let me just look up
` something real quick, and then I'll let -- I'll
` have a few questions for you, Ms. McCurdy. Okay?
` Ms. McCurdy, is there anything -- if we
` were to -- is there anything specific that you're
` looking for in these depositions?
` MS. McCURDY: Yes, Your Honor. Just a
` few points about that.
` The documents they're relying upon are
` not Biogen documents. They're relying upon
` particular databases, like Westlaw and the
` Wayback Machine. And that's what they need to
` prove, that it was publicly available, that their
` exhibit was publicly available.
` So any suggestion that, you know,
` Biogen -- these are Biogen documents is not
` correct. They're relying on not just
`
`19
` authentication of documents; they are using these
` documents as -- this testimony as the sole basis
` to establish that something is a prior art
` publication prior to our filing date.
` The Nestle case that counsel cited is
` inapposite because the court expressly noted
` there that in that case, in contrast to the IBG
` case, the Petitioner was not alleging that the
` Patent Owner's evidence rises to the level of
` being so critical because it was the sole
` evidence that is being relied upon to establish
` prior art.
` That's exactly our case here. So the
` Nestle case does not apply. The case that I
` cited, the IBG case that I cited, applies because
` that's how this testimony is being used.
` So it's not the casual authentication of
` documents. They're trying to demonstrate that
` documents -- and rely upon in their grounds as
` well as representing what's in the prior art --
` that these databases show and demonstrate that
` documents were printed publications, and we think
` there's many deficiencies sort of across all of
` them.
` For example, on the Westlaw declarant,
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` she doesn't give adequate information about the
` procedures for getting information. She doesn't
` say really much beyond that these are on the
` database now, in 2018.
` There's a lot of -- there's just
` insufficiencies that show she does not have
` personal knowledge about what was on the database
` back in 2005 and 2006.
` And the same for the Wayback Machine.
` It's not -- we think we can demonstrate problems
` with that data that shed doubt on whether it was
` available or not.
` And the same thing for the Mihail and
` Greb declarations --
` JUDGE SNEEDEN: Can we -- I think
` there's some distinctions to be made with some of
` these declarations. For example, the Mihail
` would obviously fall under additional discovery
` and not routine discovery. And so it's -- I
` think we should just take these declarations one
` at a time or Declarants one at a time.
` Focusing on the Rock declaration, that's
` the Westlaw declarant; correct?
` MS. McCURDY: Correct.
` JUDGE SNEEDEN: With respect to that,
`
`21
`
` aren't the press releases Patent Owner's press
` release?
` MS. McCURDY: Not the documents they
` rely upon, no. They're Westlaw documents. So
` they're relying upon a third-party vendor and
` their processes and procedures back in 2005.
` They're trying to date these back to
` many years ago with documents that are dated now.
` They're dated 2018. And we think Ms. Rock's
` declaration, for example -- she doesn't indicate
` whether Westlaw even had access to Business Wire
` information back in the relevant time period.
` So she's failed to demonstrate even when
` Weslaw's relationship with Business Wire began.
` She doesn't testify that --
` JUDGE SNEEDEN: Does Patent Owner's
` position have any evidence suggesting that the
` press releases were not publicly available?
` MS. McCURDY: These particular documents
` by Westlaw, we --
` JUDGE SNEEDEN: Are you talking about
` the press release -- the information contained in
` the press release or the documents that come out
` of the database from Westlaw?
` MS. McCURDY: The latter, Your Honor.
`
`202-220-4158
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`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
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`Case No. IPR2018-01403
`
`April 12, 2019
`7 (Pages 22 to 25)
`24
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`22
`
` That's -- and that's all they rely upon. This is
` their exhibit.
` And so our position is that that
` document, that they have the burden -- they
` choose the documents they rely upon, but that
` document they rely upon of Westlaw, they need to
` show Westlaw published that at the relevant time
` period, and they've failed to do that -- failed
` to show that it was publicly available on
` Westlaw.
` And that's what they rely upon for
` public availability. They rely on Westlaw, so
` they need to show that Westlaw had that at the
` time.
` JUDGE SNEEDEN: Does patent Owner have
` any -- in possession of any information to
` suggest that the information contained in the
` database is different from the press release?
` Patent Owner's press release?
` MS. McCURDY: We've not done that
` examination. But here, where they rely only on
` Westlaw, it's their burden, not Patent Owner's
` to -- to show that something is publicly
` available. And they failed to meet their burden.
` JUDGE SNEEDEN: Okay. Understood.
`
`23
`
` Okay. What is the Exhibit 1012 again?
` Or the declarant for 1012?
` MS. McCURDY: I believe that's the
` Butler declaration.
` JUDGE SNEEDEN: Okay. Butler
` declaration.
` So this would fall under routine
` discovery; correct?
` MS. McCURDY: Yes, this is routine
` discovery.
` JUDGE SNEEDEN: And Mr. White, you're in
` agreement with that? You would agree that Butler
` declaration falls under routine discovery?
` MR. WHITE: Was that a question to
` Mylan, Your Honor?
` JUDGE SNEEDEN: To you, Mr. White, yes.
` I just want to know if there's any disagreement
` between the parties if the Butler declaration is
` routine discovery or not.
` MR. WHITE: I believe it would fall
` under routine discovery of a third party.
` JUDGE SNEEDEN: All right. Okay. So I
` think -- with that, it's similar fact situation
` as -- as similar evidence with respect to the
` Rock declarant -- the Rock declaration.
`
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` Okay. And then there was a fourth -- I
` have the Mihail. Let's save that for last. What
` was the fourth declarant?
` MS. McCURDY: The Greb declarant, Your
` Honor.
` JUDGE SNEEDEN: And what exhibit is
` that?
` MS. McCURDY: It's not an exhibit
` because it's not been filed, Your Honor. It was
` served on Biogen by Mylan.
` JUDGE SNEEDEN: I see. And in what
` manner are they relying on this declarant?
` MS. McCURDY: In it, among other things,
` it's a response to evidentiary objections. But
` among other things, Attorney Greb goes through
` the Mihail declaration and explains how she or
` someone else uploaded documents from the PTO
` website. Basically, that they're relying upon
` Mihail.
` JUDGE SNEEDEN: Uh-huh.
` MS. McCURDY: And there's a question
` whether there's personal knowledge of those
` events.
` There are also substantial
` comparisons -- substantive comparisons between
`
`25
` the document Ms. Greb attaches, which is in one
` of the grounds, and what Mr. Mihail pulled up.
` But the documents Ms. Greb attaches is
` not -- is dated after the relevant time period,
` which suggests a discrepancy and a reason why
` there's reason to believe that that document --
` that Mylan cannot establish that that document
` was available at the relevant time period.
` So it more than just bears on
` authentication. There's substantive documents in
` there comparing the exhibits and making
` conclusions about them.
` JUDGE SNEEDEN: Okay.
` MS. McCURDY: It's a very unusual manner
` to put in an exhibit. And one of the reasons we
` think they've done it this way, to rely on Mihail
` from a different procedure, is because they
` weren't able to replicate it themselves, because
` the document attached to her declaration is dated
` after the relevant date and has lots of
` information after the relevant date.
` JUDGE SNEEDEN: So -- okay. So what
` specific information would you be seeking with
` cross-examination of Mihail?
` MS. McCURDY: Of Mihail, we'd be seeking
`
`202-220-4158
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`www.hendersonlegalservices.com
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`Case No. IPR2018-01403
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`April 12, 2019
`8 (Pages 26 to 29)
`28
`
`26
` to determine whether -- to probe his -- the steps
` he took and the reliability of it in discussing
` Exhibit 1010 --
` JUDGE SNEEDEN: Okay.
` MS. McCURDY: -- and responding to
` anything that happened in the prior case.
` There's a suggestion that it can't be reproduced
` and that's why they relied upon Mihail instead of
` putting in their own declaration. So the fact
` that Biogen may not have cross-examined in the
` past doesn't mean we're not entitled to do it
` now, based on it being a different proceeding,
` different facts and discrepancy in the exhibit.
` JUDGE SNEEDEN: Uh-huh. Okay. I think
` I understand the nature of the request.
` Anything further, Ms. McCurdy?
` MS. McCURDY: I just wanted to discuss
` the schedule, unless you'd like me to wait on
` that point.
` JUDGE SNEEDEN: Let's wrap this up
` first, and then I'll -- we'll move on to that.
` Mr. White, do you have anything further
` before I confer with Judge Harlow?
` MR. WHITE: Not on these issues.
` Certainly if discovery is authorized, there would
`
`27
`
` be questions on our end about subpoenas and
` potential discovery as to Biogen. But we can
` address those after Your Honors decide.
` JUDGE SNEEDEN: Okay. All right. If
` you -- we'll take a quick break while I confer
` with Judge Harlow. We'll be back momentarily.
` MS. McCURDY: Thank you, Your Honor.
` (Pause.)
` JUDGE SNEEDEN: Hello, this is Judge
` Sneeden. Ms. McCurdy?
` MS. McCURDY: Yes.
` JUDGE SNEEDEN: And Mr. White?
` MR. WHITE: I'm here.
` JUDGE SNEEDEN: Okay, good.
` Okay. I've conferred with Judge Harlow,
` and we have agreed to go ahead and authorize the
` motion for additional discovery. That's with
` respect to the Mihail and Greb declarations -- or
` Declarants. Let's start with that.
` Ms. McCurdy, how long would you need to
` prepare your motion for additional discovery and
` how many pages are you requesting?
` MS. McCURDY: I think we could do it in
` a week and in seven pages.
` JUDGE SNEEDEN: Okay. Sounds good.
`
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` And Mr. White, is that acceptable to
` you?
` MR. WHITE: Yeah, that sounds fine. If
` we could have a week to respond, I think we can
` do that.
` JUDGE SNEEDEN: And seven pages to
` respond in?
` MR. WHITE: I think that should be fine.
` If we need more, we'll certainly reach out to
` Your Honors for request.
` JUDGE SNEEDEN: Okay. So we'll make
` those due -- let's see here.
` There's complications with my own
` schedule, but let me see here.
` Let's go ahead and make them due on the
` 22nd, and then I'll give you -- and then the
` opposition due on the 29th. Let's go ahead and
` make it the 30th. Okay?
` MS. McCURDY: That's fine, Your Honor.
` JUDGE SNEEDEN: Okay.
` Okay. And -- okay. So I think with the
` next one we're discussing the routine discovery,
` and we're looking at a motion to compel testimony
` under 42.52a.
` Is that correct, Ms. McCurdy?
`
`29
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` MS. McCURDY: We've -- we would have
` understood that it's not necessarily to compel
` the discovery, because they've b