Case 2:20-cv-00337-JRG Document 139 Filed 08/13/21 Page 1 of 5 PageID #: 7558
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`SEAGEN INC.,
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`v.
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`Plaintiff,
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`DAIICHI SANKYO CO., LTD.,
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`Defendant, and
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`CASE NO. 2:20-cv-00337-JRG
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`ASTRAZENECA PHARMACEUTICALS
`LP and ASTRAZENECA UK LTD.,
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`Intervenor-Defendants.
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`DEFENDANTS’ MOTION FOR LEAVE TO FILE
`SUR-REPLY CLAIM CONSTRUCTION BRIEF
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`Pursuant to Local Rule CV-7(k), Defendants Daiichi Sankyo Co., Ltd., AstraZeneca
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`Pharmaceuticals LP, and AstraZeneca UK Ltd. respectfully move this Court for permission to file
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`a sur-reply claim construction brief, and if such relief is granted, that Seagen also be granted leave
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`to file a sur-sur-reply brief. Plaintiff Seagen Inc. does not oppose this Motion; its full position is
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`set forth below.
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`Defendants seek leave to address a single issue raised in Plaintiff’s reply brief: whether
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`the term “drug moiety” is defined in the patent. (Dkt. No. 135 at 1-4.)
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`Good cause exists for Defendants’ request to file a sur-reply. As Defendants previewed in
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`their responsive claim construction brief (Dkt. No. 130 at 7 n.2), during the meet-and-confer
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`process, Daiichi Sankyo Japan crystallized the sole disagreement between the parties regarding
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`“drug moiety”: whether the patent defines the claim term. (Dkt. No. 130 Ex. 3.) Plaintiff chose
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`not to engage with Defendants. (Id.) And Plaintiff’s opening claim construction brief was silent
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`on the question of lexicography, choosing instead to brief the undisputed issue of ordinary
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`SEAGEN INC.,
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`v.
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`Plaintiff,
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`DAIICHI SANKYO CO., LTD.,
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`Defendant, and
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`CASE NO. 2:20-cv-00337-JRG
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`
`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`ASTRAZENECA PHARMACEUTICALS
`LP and ASTRAZENECA UK LTD.,
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`Intervenor-Defendants.
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`DEFENDANTS’ MOTION FOR LEAVE TO FILE
`SUR-REPLY CLAIM CONSTRUCTION BRIEF
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`Pursuant to Local Rule CV-7(k), Defendants Daiichi Sankyo Co., Ltd., AstraZeneca
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`Pharmaceuticals LP, and AstraZeneca UK Ltd. respectfully move this Court for permission to file
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`a sur-reply claim construction brief, and if such relief is granted, that Seagen also be granted leave
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`to file a sur-sur-reply brief. Plaintiff Seagen Inc. does not oppose this Motion; its full position is
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`set forth below.
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`Defendants seek leave to address a single issue raised in Plaintiff’s reply brief: whether
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`the term “drug moiety” is defined in the patent. (Dkt. No. 135 at 1-4.)
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`Good cause exists for Defendants’ request to file a sur-reply. As Defendants previewed in
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`their responsive claim construction brief (Dkt. No. 130 at 7 n.2), during the meet-and-confer
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`process, Daiichi Sankyo Japan crystallized the sole disagreement between the parties regarding
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`“drug moiety”: whether the patent defines the claim term. (Dkt. No. 130 Ex. 3.) Plaintiff chose
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`not to engage with Defendants. (Id.) And Plaintiff’s opening claim construction brief was silent
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`on the question of lexicography, choosing instead to brief the undisputed issue of ordinary
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`Case 2:20-cv-00337-JRG Document 139 Filed 08/13/21 Page 2 of 5 PageID #: 7559
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`meaning. (Dkt. No. 121 at 8-11.) Defendants, in their responsive claim construction brief, noted
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`this and alerted the Court that “Seagen’s decision not to brief the actual issue deprives Defendants
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`of the opportunity to respond to whatever position Seagen eventually articulates” and that
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`Defendants may seek leave to file a sur-reply. (Dkt. No. 130 at 7 n.2.) Seagen has now stated its
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`position on lexicography and the Defendants’ argument that the patent defines “drug moiety.” (See
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`Dkt. No. 135 at 1-4.) Seagen also has cited case law Defendants have not had an opportunity to
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`address. (Id. at 1-2.)
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`Seagen’s position is that a sur-reply is unnecessary because Seagen’s position on
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`construction of the term has not changed. Defendants’ response addressed the issue, and Seagen’s
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`reply briefing on it was limited to three pages. Nonetheless, Seagen does not oppose Defendants’
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`request for leave to file a sur-reply so long as, should leave for DSC’s sur-reply be granted, Seagen
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`also be granted leave for a three page sur-sur-reply, due August 20, 2021. Defendants do not
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`oppose this request.
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`Accordingly, Defendants respectfully request that the Court grant them leave to file a sur-
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`reply brief, which does not exceed four pages, and should such leave be granted, leave also be
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`granted for Seagen to file a sur-sur-reply not to exceed three pages.
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`2
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`Case 2:20-cv-00337-JRG Document 139 Filed 08/13/21 Page 3 of 5 PageID #: 7560
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`Dated: August 13, 2021
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`Respectfully submitted,
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`MANN | TINDEL | THOMPSON
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`201 E. Howard Street
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` Henderson, Texas 75654
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`(903) 657-8540
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`(903) 657-6003 (fax)
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` By: /s/ G. Blake Thompson
` G. Blake Thompson
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` State Bar No. 24042033
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` Blake@TheMannFirm.com
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` J. Mark Mann
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` State Bar No. 12926150
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` Mark@TheMannFirm.com
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`Deron R. Dacus
`State Bar No. 00790553
`The Dacus Firm, P.C.
`821 ESE Loop 323, Suite 430
`Tyler, Texas, 75701
`+1 (903) 705-1117
`+1 (903) 581-2543 facsimile
`ddacus@dacusfirm.com
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`Attorneys for Defendant Daiichi
`Sankyo Company, Limited
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`OF COUNSEL:
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`Preston K. Ratliff II
`Joseph M. O’Malley, Jr.
`Ashley N. Mays-Williams
`Paul Hastings LLP
`200 Park Avenue
`New York, NY 10166
`(212) 318-6000
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`3
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`Case 2:20-cv-00337-JRG Document 139 Filed 08/13/21 Page 4 of 5 PageID #: 7561
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`Jeffrey A. Pade
`Paul Hastings LLP
`2050 M Street NW
`Washington, DC 20036
`(202) 551-1700
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`Attorneys for Defendant Daiichi Sankyo
`Company, Limited
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`/s/ Jennifer Parker Ainsworth
`Jennifer Parker Ainsworth
`Texas State Bar No. 00784720
`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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`Attorney for Intervenor-Defendants
`AstraZeneca Pharmaceuticals LP and
`AstraZeneca UK Ltd.
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`OF COUNSEL
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`David I. Berl
`Thomas S. Fletcher
`Jessica L. Pahl
`Kathryn Kayali
`Kevin Hoagland-Hanson
`Andrew Hoffman
`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 Intervenor-Defendants
`AstraZeneca Pharmaceuticals LP and
`AstraZeneca UK Ltd.
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`4
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`Case 2:20-cv-00337-JRG Document 139 Filed 08/13/21 Page 5 of 5 PageID #: 7562
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`CERTIFICATE OF CONFERENCE
`Pursuant to L.R. CV-7(i), the undersigned certifies that prior to filing this motion, counsel
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`for Defendants conferred with counsel for Plaintiff to seek its consent to file a sur-reply. Counsel
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`for Plaintiff confirmed on August 13, 2021, that Plaintiff does not oppose the relief sought by the
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`motion. Seagen’s request is that if leave for DSC’s sur-reply is granted, Seagen also be granted
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`leave for a three page sur-sur-reply, due August 20, 2021. Defendants do not oppose this request.
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` /s/ G. Blake Thompson
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` G. Blake Thompson
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that all counsel of record who are deemed to have
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`consented to electronic service are being served with a copy of this document via the Court’s
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`CM/ECF system per L.R. CV-5(a)(3) on August 13, 2021.
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` /s/ G. Blake Thompson
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` G. Blake Thompson
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`5
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