Case 2:20-cv-00337-JRG Document 126 Filed 07/27/21 Page 1 of 7 PageID #: 5645
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`SEAGEN INC.,
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`Plaintiff,
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`v.
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`DAIICHI SANKYO CO., LTD.,
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`Defendant.
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`CASE NO. 2:20-cv-00337-JRG
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`JURY TRIAL DEMANDED
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`ASTRAZENECA’S UNOPPOSED MOTION TO INTERVENE
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`Case 2:20-cv-00337-JRG Document 126 Filed 07/27/21 Page 2 of 7 PageID #: 5646
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`This litigation involves the marketing of Daiichi Sankyo Company, Limited’s (“Daiichi
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`Sankyo Japan”) product, Enhertu®—a revolutionary cancer therapy. Enhertu® is marketed in the
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`United States by AstraZeneca Pharmaceuticals LP (“AstraZeneca US”) and Daiichi Sankyo, Inc.
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`(“Daiichi Sankyo US”). Plaintiff Seagen Inc. has accused Defendant Daiichi Sankyo Japan of
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`infringing a patent in connection with the sale of Enhertu® in the United States. This Court recently
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`denied Daiichi Sankyo Japan’s motion to transfer this litigation to the United States District Court
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`for the District of Delaware, where AstraZeneca US had filed a co-pending declaratory judgment
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`action, and so AstraZeneca US and its affiliate AstraZeneca UK Ltd. (“AstraZeneca UK”)
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`(collectively, “AstraZeneca”) now move to intervene as defendants pursuant to Federal Rule of
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`Civil Procedure 24 to protect their interests.
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`Seagen does not oppose this motion, subject to the case management conditions set forth
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`herein and specified in the accompanying Proposed Order, and it is not opposed by Daiichi Sankyo
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`Japan.
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`I.
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`Intervention Is Proper Under Both Standards Established in Rule 24.
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`AstraZeneca’s request is proper because Rule 24 permits intervention as of right and/or by
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`permission of the Court. The inquiry under Rule 24 is a “flexible one” and “must be measured by
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`a practical rather than technical yardstick.” Edwards v. City of Houston, 78 F.3d 983, 999 (5th
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`Cir. 1996) (quoting United States v. Texas E. Transmission Corp., 923 F.2d 410, 413 (5th Cir.
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`1991)). Rule 24 is to be “liberally construed,” Texas v. United States, 805 F.3d 653, 656 (5th Cir.
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`2015) (quoting Brumfield v. Dodd, 749 F.3d 339, 341 (5th Cir. 2014)), and intervention should be
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`allowed, for example, “where no one would be hurt and the greater justice could be attained,” id.
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`at 657 (quoting Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994)); Team Worldwide Corp.
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`v. Wal-Mart Stores, Inc., C.A. No. 2:17-00235-JRG, 2017 WL 6059303, at *7 (E.D. Tex. Dec. 7,
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`Case 2:20-cv-00337-JRG Document 126 Filed 07/27/21 Page 3 of 7 PageID #: 5647
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`2017) (permitting intervention where it would not “unduly prejudice the adjudication of the
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`original parties’ rights” (emphasis added)).
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`A movant is entitled to intervene under Rule 24(a) if “(1) the motion to intervene is timely;
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`(2) the potential intervener asserts an interest that is related to the property or transaction that forms
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`the basis of the controversy in the case into which she seeks to intervene; (3) the disposition of that
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`case may impair or impede the potential intervener’s ability to protect her interest; and (4) the
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`existing parties do not adequately represent the potential intervener’s interest.” John Doe No. 1 v.
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`Glickman, 256 F.3d 371, 375 (5th Cir. 2001); see Fed. R. Civ. P. 24(a)(2). Even if these factors
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`are not satisfied, the Court nevertheless may permit intervention under Rule 24(b) for any movant
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`who filed a timely motion and “has a claim or defense that shares with the main action a common
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`question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B).
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`AstraZeneca US is directly involved in the commercialization of Enhertu®—the product
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`accused of infringement in this case—and AstraZeneca UK is contractually obligated to split with
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`Daiichi Sankyo Japan any losses resulting from Seagen’s claims of infringement related to
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`Enhertu®. AstraZeneca thus has an interest related to the property forming the basis of the
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`controversy in this case, and an unfavorable decision would impair AstraZeneca’s ability to protect
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`its interests. AstraZeneca also has defenses that share common questions of law and fact. Solely
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`by way of example, AstraZeneca intends to argue that the commercialization of Enhertu® does not
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`infringe Seagen’s patent and that Seagen’s patent is invalid, as Daiichi Sankyo Japan has alleged
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`in its contentions. Those defenses relate to central questions in this case. Intervention should thus
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`be granted.
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`Case 2:20-cv-00337-JRG Document 126 Filed 07/27/21 Page 4 of 7 PageID #: 5648
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`II.
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`The Parties Have Agreed Upon Procedures To Accommodate Intervention.
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`The parties have met and conferred to address concerns relating to intervention and to
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`propose procedural adjustments to ease the transition.
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`First, in response to an inquiry raised by Seagen, AstraZeneca obtained Daiichi Sankyo
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`Japan’s consent to represent that, in connection with facilitating AstraZeneca’s intervention in this
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`matter, neither Daiichi Sankyo Japan nor AstraZeneca will seek a writ of mandamus concerning
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`this Court’s ruling on Daiichi Sankyo Japan’s motions to transfer and dismiss.
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`To bring AstraZeneca current with all pending dates in the Court’s Docket Control and
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`Discovery Orders, the parties have agreed that AstraZeneca will comply with Paragraphs 1 and 3
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`of the Court’s Discovery Order by Friday, August 6, 2021, and is not obligated to re-produce
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`documents already produced in this action by Daiichi Sankyo Japan. AstraZeneca shall comply
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`with Paragraph 6 of the Court’s Discovery Order by Friday, August 6, 2021, and is not obligated
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`to re-log privileged information already logged by Daiichi Sankyo Japan. Each party shall produce
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`to AstraZeneca any documents that such party previously produced in this action by Friday, August
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`6, 2021.
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`The parties have agreed that the Discovery Limitations set forth in Paragraphs 5(a) and
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`5(b) of the Discovery Order that are “per party” shall apply “per side,” and that Daiichi Sankyo
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`Japan and AstraZeneca shall coordinate in seeking to take the deposition of any Seagen-affiliated
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`witness, and no witness shall be deposed for more than seven hours based on the fact that there are
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`multiple defendants. To the extent there is a need to depose any witness affiliated with
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`AstraZeneca who is based in the United Kingdom, AstraZeneca would prefer to conduct such a
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`deposition virtually to reduce risks associated with the COVID-19 pandemic. If Seagen needs to
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`conduct an in-person deposition of such a witness who has been identified in AstraZeneca’s initial
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`Case 2:20-cv-00337-JRG Document 126 Filed 07/27/21 Page 5 of 7 PageID #: 5649
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`disclosures, to avoid the need to invoke procedures under the Hague Evidence Convention,
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`AstraZeneca UK will make such a witness available for deposition in the United States, subject to
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`any travel restrictions imposed by either the United States or the United Kingdom as a result of
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`the COVID-19 pandemic. The parties have further agreed that AstraZeneca US and AstraZeneca
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`UK also are “Parties” to the Protective Order and to the E-Discovery Order.
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`Finally, AstraZeneca confirms that Daiichi Sankyo Japan and AstraZeneca shall file a
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`single Responsive Claim Construction Brief, and has represented that it joins in Daiichi Sankyo
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`Japan’s Invalidity Contentions and no change is being made to the P.R. 3.3 & 3.4 deadlines. In
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`addition, Daiichi Sankyo Japan and AstraZeneca shall file any other permitted briefs, such as in
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`support of summary judgment or pretrial proceedings, jointly on a “per side” basis, and without
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`any expansion of page limitations. AstraZeneca also estimates that it will call only two additional
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`fact witnesses for trial. AstraZeneca does not propose any expansion to the number of expert
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`witnesses.
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`For the foregoing reasons, AstraZeneca respectfully requests that the Court permit
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`AstraZeneca to intervene as a matter of right pursuant to Federal Rule of Civil Procedure 24(a)(2),
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`or in the alternative, permissively pursuant to Federal Rule of Civil Procedure 24(b)(1)(B) and
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`enter the attached Proposed Order. AstraZeneca’s Answer to the Complaint is attached as Exhibit
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`A. It does not include any defenses that Daiichi Sankyo Japan did not raise in its Answer.
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`Case 2:20-cv-00337-JRG Document 126 Filed 07/27/21 Page 6 of 7 PageID #: 5650
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`Dated: July 27, 2021
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`Respectfully submitted,
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`/s/ Jennifer Parker Ainsworth
`Jennifer Parker Ainsworth
`Texas State Bar No. 00784720
`jainsworth@wilsonlawfirm.com
`WILSON, ROBERTSON & CORNELIUS, P.C.
`909 ESE Loop 323, Suite 400
`Tyler, Texas 75701
`Phone: (903) 509-5000
`Facsimile: (903) 509-5092
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`David I. Berl
`dberl@wc.com
`Thomas S. Fletcher
`tfletcher@wc.com
`Jessica L. Pahl
`jpahl@wc.com
`Kathryn S. Kayali
`kkayali@wc.com
`Kevin Hoagland-Hanson
`khoagland-hanson@wc.com
`Andrew Hoffman
`ahoffman@wc.com
`WILLIAMS & CONNOLLY LLP
`725 Twelfth Street, N.W.
`Washington, DC 20005
`Phone: (202) 434-5000
`Facsimile: (202) 434-5029
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`Attorneys for AstraZeneca Pharmaceuticals
`LP and AstraZeneca UK Ltd.
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`Case 2:20-cv-00337-JRG Document 126 Filed 07/27/21 Page 7 of 7 PageID #: 5651
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`This is to certify that counsel for AstraZeneca US and AstraZeneca UK Ltd. have conferred
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`CERTIFICATE OF CONFERENCE
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`with counsel for Plaintiff and Defendants concerning this motion and they do not oppose the motion.
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`/s/ Jennifer P. Ainsworth
`Jennifer P. Ainsworth
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that the foregoing document was filed electronically in
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`compliance with Local Rule CV-5(a). As such, this motion was served on all counsel who have
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`consented to electronic service, Local Rule CV-5(a)(3), on this the 27th day of July, 2021.
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`/s/ Jennifer P. Ainsworth
`Jennifer P. Ainsworth
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