Case 1:16-cv-01221-LPS Document 146 Filed 04/24/20 Page 1 of 3 PageID #: 1096
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 16-1221 (LPS)
`CONSOLIDATED
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`BAYER HEALTHCARE LLC and BAYER
`HEALTHCARE PHARMACEUTICALS INC.,
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`APOTEX, CORP. and APOTEX, INC., et al.,
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`Plaintiffs,
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`v.
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`Defendants.
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`JOINT STATUS REPORT
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`Pursuant to the Court’s Order dated April 20, 2020, the parties provide the following
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`joint status report regarding the above-captioned consolidated case:
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`1.
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`In light of the current state of emergency, the parties submit that the
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`June 22, 2020 trial will need to be rescheduled. The parties note the following: (a) two of
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`Bayer’s testifying experts are senior citizens, one of whom is located in the United Kingdom;
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`(b) the spouse of one of Bayer’s expert witnesses, in addition to being a senior citizen, has
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`significant underlying health conditions that place her at great risk should she become infected
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`with COVID-19; (c) a Bayer fact witness and an in-house Bayer counsel responsible for
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`managing the litigation are located in Germany. The parties recognize that these issues present
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`health risks and considerable logistical complications (including due to restrictions on
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`international travel) that interfere with trial preparation and render unrealistic the possibility of
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`commencing trial as scheduled.
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`2.
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`With regard to rescheduling the trial, Apotex has filed a Paragraph III certification
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`to a blocking patent that is listed in the Orange Book and does not expire until June 28, 2022.
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`See D.I. 135. Given this fact, Bayer believes that in order to allow time for the current public
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`Case 1:16-cv-01221-LPS Document 146 Filed 04/24/20 Page 2 of 3 PageID #: 1097
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`health situation to stabilize, trial should be scheduled for a date in May-June 2021, other than
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`during the weeks of May 31 and June 7. Bayer’s understanding is that the Court may have
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`availability in its calendar during that timeframe. While Bayer appreciates Apotex’s willingness
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`to move the trial to August 2020 (as discussed below), Bayer respectfully submits that the time
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`for a decision and mandate on appeal is not typically taken into account for purposes of setting a
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`trial date—rather, the determinative factor is the timing of any stays or paragraph III
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`certifications that affect FDA approval—and notes that there would be plenty of time for the
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`Court to issue a decision well before June 2022 if the trial were held a full year earlier, in May-
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`June 2021. Bayer also is concerned that the health situation is unlikely to stabilize in sufficient
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`time to allow its senior citizen experts to safely attend an August 2020 trial, nor is there any
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`certainty that international travel restrictions will be lifted in time. As such, Bayer submits that
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`concerns regarding the public health emergency and the impediments to trial preparation should
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`take precedence over Apotex’s preferences to have both a district court and Federal Circuit
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`decision by June 2022.
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`3.
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`While Apotex is ready and able to maintain the currently-scheduled June 2020
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`trial dates, in the spirit of cooperation and to accommodate Bayer’s witnesses, Apotex is willing
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`to reschedule the trial to a later date. Apotex believes that it would be reasonable to reschedule
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`the trial to a date beginning in August 2020. This would allow for an appellate decision
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`mandate, if necessary, to be issued before the June 28, 2022 expiration of Bayer’s 7,351,834
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`patent, and would lower the risk of potentially postponing this trial for the third time if a
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`potential recurrence of the COVID-19 pandemic takes place during the winter flu season or even
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`in May-June of next year. Apotex respectfully requests potential dates available in the Court’s
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`schedule beginning in August of 2020. To the extent trial is rescheduled to another date on or
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`Case 1:16-cv-01221-LPS Document 146 Filed 04/24/20 Page 3 of 3 PageID #: 1098
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`around August 2020, but public health issues remain, Apotex would of course be amenable to
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`further accommodations. To that end, Apotex proposes maintaining June 22nd as a date for a
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`status call with the Court regardless of any rescheduled trial dates.
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`4.
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`5.
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`The parties are available at the Court’s convenience to discuss rescheduling.
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`This matter is currently set for a five-day bench trial. D.I. 140. The parties
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`request twelve hours per side for their trial presentations, subject to the Court’s schedule.
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`MORRIS JAMES LLP
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`/s/ Kenneth L. Dorsney
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`Kenneth L. Dorsney (#3726)
`500 Delaware Avenue, Suite 1500
`Wilmington, DE 19801
`kdorsney@morrisjames.com
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`Attorney for Defendants Apotex Corp. and
`Apotex Inc.
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
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`/s/ Jack B. Blumenfeld
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`Jack B. Blumenfeld (#1014)
`Derek J. Fahnestock (#4705)
`Anthony D. Raucci (#5948)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`dfahnestock@mnat.com
`araucci@mnat.com
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`Attorneys for Plaintiffs
`Bayer Healthcare LLC and
`Bayer Healthcare Pharmaceuticals Inc.
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`April 24, 2020
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