Case 2:20-cv-00337-JRG Document 386 Filed 04/22/22 Page 1 of 6 PageID #: 15069
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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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`v.
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`Civil Action No. 2:20-CV-00337-JRG
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`Plaintiff,
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`DAIICHI SANKYO CO., LTD.,
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`Defendant,
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`ASTRAZENECA PHARMACEUTICALS LP, and
`ASTRAZENECA UK LTD,
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`Intervenor-Defendants.
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`PLAINTIFF’S OPPOSED MOTION FOR ENTRY OF POST-TRIAL BRIEFING
`SCHEDULE
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`sf-4795081
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`Case 2:20-cv-00337-JRG Document 386 Filed 04/22/22 Page 2 of 6 PageID #: 15070
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`Seagen moves for the Court to set a schedule for ruling on Defendants’ prosecution
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`laches defense and for briefing on any post-trial motions, including Rule 50 or Rule 59 motions,
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`prior to the entry of a final judgment. Seagen seeks this single, comprehensive briefing schedule
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`to facilitate an expedient resolution of all post-trial issues with the issuance of a single,
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`appealable final judgment.
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`Seagen’s comprehensive post-trial schedule in consistent with the approach used by the
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`Court in a number of past cases. See, e.g., Smartflash LLC v. Apple, Inc., No. 6:13-CV-447-
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`JRG, ECF No. 545 (E.D. Tex. April 10, 2015) (briefing all post-trial motions pre-judgment).
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`Other judges in this district employ similar approaches, including in cases with equitable issues
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`for decision by the court. See Elbit Sys. Land & C4I Ltd. v. Hughes Network Sys., LLC, No.
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`2:15-CV-37-RWS-RSP, ECF No. 503 (E.D. Tex. Aug. 24, 2017) (briefing post-trial and
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`equitable issues simultaneously for resolution pre-judgment); Mars, Inc. v. TruRX, LLC, No.
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`6:13-CV-526-RWS-KNM, ECF Nos. 389, 392 (E.D. Tex. May 12, 2016, May 24, 2016) (post-
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`trial schedule briefing all issues pre-judgment); ReedHycalog UK, Ltd. v. Diamond Innovations
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`Inc., No. 6:08-CV-325-LED, ECF No. 289 (E.D. Tex. June 10, 2010) (same).
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`Here, Defendants’ affirmative defense of prosecution laches was bifurcated. (Dkt. 347 at
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`2.) On April 12, 2022, Seagen proposed a schedule to Defendants to take the prosecution laches
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`issue up by submission to the Court, with briefing completed by May 27, 2022. Defendants did
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`not agree to the proposed schedule. (Ex. A at 1–2.) On April 20, 2022, Seagen followed up,
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`proposing one briefing schedule for all pending post-verdict issues. (Id. at 1.) In a meet and
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`confer on April 22, 2022, Defendants did not agree to the proposed schedule, and instead
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`suggested they would be seeking a stay.
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`Defendants’ rationale for a stay is to push out entry of a final, appealable judgment in this
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`case in favor of proceedings before the Patent Office. As Defendants noted during trial, the
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`Case 2:20-cv-00337-JRG Document 386 Filed 04/22/22 Page 3 of 6 PageID #: 15071
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`Patent Trial and Appeal Board instituted Post Grant Review of the asserted claims of the ’039
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`patent on April 7, 2022. (April 8, 2022 Tr. at 49:25-50:5.) The PTAB has scheduled a hearing
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`for January 17, 2023 and a Final Written Decision by the PTAB is expected around April 7,
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`2023.1 A delay in resolving the post-verdict proceedings in this case will increase the likelihood
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`that any appeal of the jury verdict from this litigation will be pending when the Final Written
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`Decision issues and the non-prevailing party appeals that decision, which could result in
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`conflicting appeals before the Federal Circuit.
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`Seagen proposes the following schedule for disposition of Defendants’ prosecution laches
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`defense and for briefing on any post-trial motions, including Rule 50 or Rule 59 motions:
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`Date
`May 6, 2022
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`May 27, 2022
`June 3, 2022
`June 10, 2022
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`Event
`Deadline to file all post-trial motions and any
`opening brief regarding prosecution laches
`Deadline to file oppositions
`Deadline to file replies to oppositions
`Deadline to file sur-replies
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`Page Limits
`50
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`50
`15
`15
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`In its opening motions, Seagen intends to seek enhanced damages under 35 U.S.C. § 284,
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`an on-going and enhanced royalty rate and supplemental damages, and an exceptional case
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`finding and attorney fees under 35 U.S.C. § 285. Should the Court find the case exceptional and
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`award Seagen attorney fees in the final judgment, Seagen proposes submissions regarding the
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`amount of attorney fees occur post-judgment without extending the time to appeal, consistent
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`with Fed. R. Civ. P. 54(d), 58(e), and Fed. R. App. P. 4(a)(4)(A)(iii).
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`Seagen’s proposal does not include a bench trial on prosecution laches because Seagen
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`believes testimony on this issue from the parties’ experts is unlikely to aid the Court in resolving
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`1 On April 21, 2022, Seagen sought rehearing of the PTAB’s institution decision, noting the
`verdict in this litigation. Defendants’ invalidity defenses in the PTAB proceedings are identical
`to those the jury decided in this case.
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`Case 2:20-cv-00337-JRG Document 386 Filed 04/22/22 Page 4 of 6 PageID #: 15072
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`the defense and could be submitted by declarations with the briefing if truly necessary and non-
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`cumulative of the experts’ reports and deposition testimony. The facts relating to the defense
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`were all adduced in the jury trial, and the only opinion Defendants’ expert provides over the
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`current record is his view of the law.2 (Ex. B.) Nonetheless, should the Court determine a bench
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`trial would be helpful for resolving prosecution laches, a single day should be set in May 2022,
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`with proposed findings of fact and conclusions of law due no later than June 10, 2022. This
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`would allow the Court to consider all remaining open issues in tandem and issue judgment
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`promptly.
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`In the interest of expedient resolution of all remaining issues to facilitate entry of a final,
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`appealable judgment, Seagen requests entry of this comprehensive post-trial briefing schedule.
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`2 A bench trial is also unnecessary because Defendants’ prosecution laches defense lacks any
`serious merit. The asserted patent is post-GATT, and it is black letter law that it is permissible to
`draft claims directed to a competitor’s product. See, e.g., Chrimar Sys., Inc. v. Alcatel-Lucent
`Enter. USA Inc., No. 6:15-CV-00163-JDL, 2017 WL 345991, at *4 (E.D. Tex. Jan. 24, 2017)
`(explaining that GATT-based provisions “alleviate the need for the equitable remedy … based
`on a delayed prosecution”); BlephEx, LLC v. Myco Indus., Inc., 24 F.4th 1391, 1404 (Fed. Cir.
`2022) (“[T]here is nothing improper, illegal, or inequitable in filing a patent application for the
`purpose of obtaining a right to exclude a known competitor’s product from the market.”)
`(quoting Kingsdown Med. Consultants, Ltd. v. Hollister Inc., 863 F.2d 867, 874 (Fed. Cir.
`1988)). Thus, prosecution laches does not apply as a matter of law.
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`Case 2:20-cv-00337-JRG Document 386 Filed 04/22/22 Page 5 of 6 PageID #: 15073
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`Dated: April 22, 2022
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`sf-4795081
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`By: /s/ Michael A. Jacobs
`Michael A. Jacobs
`MJacobs@mofo.com
`Matthew A. Chivvis
`MChivvis@mofo.com
`MORRISON & FOERSTER LLP
`425 Market Street
`San Francisco, CA 94105
`Telephone: 415.268.7000
`Facsimile: 415.268.7522
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`Bryan Wilson
`BWilson@mofo.com
`MORRISON & FOERSTER LLP
`755 Page Mill Road
`Palo Alto, California 94304-1018
`Telephone: 650.813.5600
`Facsimile: 650.494.0792
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`Melissa R. Smith
`Texas State Bar No. 24001351
`melissa@gillamsmithlaw.com
`GILLAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Telephone: 903.934.8450
`Facsimile: 903.934.9257
`Of Counsel:
`T. John Ward, Jr.
`Texas State Bar No. 00794818
`jw@wsfirm.com
`Wesley Hill
`Texas Bar No. 24032294
`wh@wsfirm.com
`Charles Everingham IV
`Texas State Bar No. 00787447
`ce@wsfirm.com
`Andrea L. Fair
`Texas State Bar No. 24078488
`andrea@wsfirm.com
`WARD, SMITH & HILL, PLLC
`1507 Bill Owens Parkway
`Longview, Texas 75604
`Telephone: 903.757.6400
`Facsimile: 903.757.2323
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` Attorneys for Plaintiff Seagen Inc.
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`Case 2:20-cv-00337-JRG Document 386 Filed 04/22/22 Page 6 of 6 PageID #: 15074
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that counsel of record who are deemed to have
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`consented to electronic services are being served with a copy of this document via the Court’s
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`CM/ECF system per Local Rule CV-5(a)(3) on this the 22nd day of April, 2022.
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` /s/ Melissa R. Smith
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`CERTIFICATE OF CONFERENCE
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`On April 12, 2022, Seagen proposed a schedule to Defendants to take the prosecution
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`laches issue up by submission to the Court, with briefing completed by May 27, 2022.
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`Defendants said they would evaluate the proposal, but suggested they were unlikely to agree. On
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`April 20, 2022, Seagen followed up, proposing one briefing schedule for all pending post-verdict
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`issues. Defendants again suggested they were unlikely to agree. The parties held a meet and
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`confer on April 22, 2022. In that discussion, Defendants did not agree to the proposed schedule,
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`and instead suggested they would be seeking a stay of this litigation in light of the April 7, 2022,
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`institution decision by the PTAB. Seagen noted it would thus be filing this motion opposed, and
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`requested that Defendants agree to expedited briefing on a schedule. Defendants requested that
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`they be permitted to evaluate this motion before stating a position on expedited briefing, but
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`again noted they intend to seek a stay. Seagen responded that it would file an opposed motion
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`for expedited briefing if Defendants do not agree, and intends to file that motion on Monday if
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`the parties have not agreed to a briefing schedule by then.
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`sf-4795081
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` /s/ Melissa R. Smith
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