Case 2:20-cv-00337-JRG Document 398 Filed 05/04/22 Page 1 of 13 PageID #: 15491
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Civil Action No. 2:20-CV-00337-JRG
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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,
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`ASTRAZENECA PHARMACEUTICALS LP, and
`ASTRAZENECA UK LTD,
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`Intervenor-Defendants.
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`SEAGEN’S RESPONSE TO DEFENDANTS’ MOTION TO STAY PENDING POST-
`GRANT REVIEW
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`I.
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`INTRODUCTION
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`Defendants’ Motion to Stay Pending Post-Grant Review (“Motion”) does not even
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`acknowledge (much less address) that this Court has already denied the same request. Just
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`before closing arguments, the Court denied Defendant’s request for a stay, finding the advanced
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`stage of the trial and “the effect of what’s been proffered to the Court” warranted denial. (Trial
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`Tr. (April 8, 2022) (“Day 5 Tr.”) at 50-51.) This Motion amounts to a motion for
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`reconsideration of that denial, but Defendants state no basis for reconsideration. The only new,
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`relevant fact since the Court’s denial is that the jury returned a verdict in Plaintiff Seagen’s
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`favor. (Dkt. 369.) These circumstances strongly support denial of Defendants’ Motion.
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`Should the Court turn to the merits, Defendants’ Motion would fail under the traditional
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`three-factor test set forth in the Motion. Granting Defendants’ request for a stay now after the
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`jury has already returned a verdict would be highly prejudicial to Seagen and waste judicial
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`resources. The parties and the Court already devoted considerable time and effort preparing for
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`and conducting a trial on the same defenses that Defendants presented to the Patent Office, and
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`the jury resolved those defenses in Seagen’s favor. The only “benefit” that Defendants present is
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`that they would get a second bite at the apple, trying to convince the Patent Office to take a
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`position inconsistent with the jury’s verdict. But this risk of inconsistency, however remote, is a
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`reason to deny the stay in favor of the more advanced proceeding—this one. Defendants’
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`renewed Motion should be denied.
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`II.
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`LEGAL STANDARD
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`This Court has explained that reconsideration of an interlocutory order is only warranted
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`in the following circumstances: “(1) an intervening change in controlling law; (2) the availability
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`of new evidence not previously available; or (3) the need to correct a clear error of law or
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`prevent manifest injustice.” King v. Cardinal Servs., LLC, No. 2:19-cv-00217-RSP, 2021 WL
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`1601356, at *1 (E.D. Tex. Apr. 22, 2021); see also Oyster Optics, LLC v. Coriant Am. Inc.,
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`No. 2:16-CV-01302-JRG, 2018 WL 7019353, at *1 (E.D. Tex. Mar. 2, 2018) (same).
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`Defendants cannot meet these standards. Nor can Defendants satisfy their burden to demonstrate
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`a stay is appropriate under the traditional three-factor test used to evaluate whether a district
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`court action should be stayed in favor a parallel Patent Office proceeding: “(1) whether the stay
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`will unduly prejudice the nonmoving party, (2) whether the proceedings before the court have
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`reached an advanced stage, including whether discovery is complete and a trial date has been set
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`and (3) whether the stay will likely result in simplifying the case before the court.” VirnetX Inc.
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`v. Apple Inc., No. 6:12-CV-00855-RWS, 2018 WL 398433, at *2 (E.D. Tex. Jan. 12, 2018).
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`III. ARGUMENT
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`Defendants fail to demonstrate that their request for a stay warrants reconsideration.
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`They do not present any new evidence, nor do they cite any intervening legal changes. And even
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`if the Court were to consider Defendants’ Motion on the merits anew, Defendants have not
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`satisfied their burden to show that a stay of the entry of judgment would be the appropriate
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`course of action. Granting Defendants’ Motion to stay would not result in significant
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`simplification of the case at its advanced stage. Instead, a stay would unduly prejudice Seagen,
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`which has already devoted considerable time and resources into obtaining a jury verdict to
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`protect its patent rights.
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`A.
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`Defendants Do Not Meet the Standard for Reconsideration
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`Defendants overlook that the Court already considered and denied their request for a stay
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`in light of the Patent Office’s institution of post-grant review. (Day 5 Tr. at 50-51.) On April 8,
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`2022, Defendants notified the Court that the “United States Patent and Trademark Office Patent
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`Trial and Appeal Board instituted post grant review of all asserted claims in this action” and
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`sought to stay the action on that basis. (Id. at 50.) Defendants also argued that in their view,
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`“[t]he Patent Office has determined that there is a reasonable likelihood that those claims are
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`invalid.” (Id.) In this Motion, Defendants again argue “[t]he Patent Office has determined that
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`‘it is more likely than not that claims 1-5, 9, and 10’ of U.S. Patent No. 10,808,039 (the “’039
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`Patent”) are invalid” and “[a] stay pending the conclusion of the post-grant review will therefore
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`greatly reduce the burden of this litigation on the Court.” (Motion at 1-2.) None of these facts or
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`arguments is new.
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` After considering Defendants’ arguments previously, the Court explained that the
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`Defendants’ request comes on the eve of a verdict as the jury was “waiting for the Court to bring
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`them in and give its final jury instructions and hear closing arguments from counsel.” (Day 5 Tr.
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`at 50.) The Court then denied Defendants’ request for a stay, noting the advanced stage of this
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`proceeding “and the effect of what’s been proffered to the Court.” (Id. at 50-51.) Mere
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`disagreement with the Court’s ruling does not support a motion for reconsideration. A motion
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`for reconsideration “should not be used to raise arguments that could, and should have already
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`been advanced by a party.” RMail Ltd. v. Amazon.com, Inc., No. 2:10-CV-258-JRG, 2014 WL
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`12614488, at *2 (E.D. Tex. Apr. 4, 2014) (quoting eTool Dev., Inc. v. Nat’l Semiconductor
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`Corp., 881 F. Supp. 2d 745, 749 (E.D. Tex. July 31, 2012) (internal quotations omitted); cf.
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`Templet, 367 F.3d at 479 (explaining that a motion for reconsideration is “not the proper vehicle
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`for rehashing evidence, legal theories, or arguments that could have been offered or raised
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`before.”). Defendants have forfeited arguments to the Court—on prejudice, simplification, and
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`stage of case—that they chose not to make when they requested a stay at trial. (Compare
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`Day 5 Tr. at 50-51 with Dkt. 392 at 5-8.)
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`What has transpired since the Court’s denial of the Defendants’ prior request for a stay
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`further supports denial of this Motion. Since then, the jury has a returned a verdict in favor of
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`Case 2:20-cv-00337-JRG Document 398 Filed 05/04/22 Page 5 of 13 PageID #: 15495
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`Seagen, after considering the same invalidity defenses that Defendants now raise before the
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`Patent Office. For example, Defendants assert to the Patent Office that claims 1-5, 9, and 10 of
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`the ’039 patent are unpatentable based on lack of adequate written description, lack of
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`enablement, and anticipation. (Dkt. 392-2, Ratliff Ex 1 at 16.) As the Court’s final jury
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`instructions and the verdict sheet make clear, the jury considered and rejected the same invalidity
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`arguments for the same claims. (Day 5 Tr. at 80-88; Dkt. 369 at 5.)
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`In addition, Defendants’ assertion that “[t]he likelihood that the Patent Office will find at
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`least some of these claims to be unpatentable is not speculation” is exactly that—speculation.
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`And Defendants fail to inform the Court that Seagen has requested a rehearing of the Patent
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`Office’s decision to institute post-grant review. (Ex. 1.) Nor do they acknowledge that the
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`Patent Office has yet to receive any testimony from a Seagen expert or fact witness on the merits,
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`which Defendants clearly wish to avoid for as long as possible. When Seagen submitted trial
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`testimony to the Patent Office in support of its motion for rehearing to show that the jury in this
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`case gave due consideration to invalidity issues after hearing from both sides’ experts (see id. at
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`vi (listing trial transcripts as Exs. 2042–2046), 7-8), Defendants responded that they would be
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`moving to strike that submission—a motion that the Patent Office has already rejected. Under
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`these circumstances, there is no guarantee that the Patent Office will maintain its decision to
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`institute a post-grant review of the ’039 patent, let alone ultimately find the asserted claims to be
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`unpatentable.
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`Defendants thus have failed to present any reason—including any new evidence, any
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`need to correct a clear error of law or prevent manifest injustice, or any intervening change in
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`law—to justify reconsideration of the Court’s prior denial of a stay. Their forfeited arguments
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`cannot be the basis for reconsideration.
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`B.
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`Granting a Stay of this Case, Post-Verdict, Unduly Prejudices Seagen and
`Does Not Simplify the Parties’ Dispute
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`As Defendants acknowledge, this Court “has the inherent power to control its own
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`docket.” (Motion at 4.) Under similar circumstances, such as a pending reexamination or inter
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`partes review, Courts in this district have declined to stay litigation in favor of instituted
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`proceedings before the Patent Office where, as here, the requesting party did not meet its burden
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`to merit a stay under the traditional three-factor analysis. See, e.g., KAIST IP US LLC v.
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`Samsung Elecs. Co., 439 F. Supp. 3d 860, 872–73 (E.D. Tex. Feb. 13, 2020) (ex parte
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`reexamination); Solas OLED Ltd. v. Samsung Display Co., Ltd., No. 2:19-CV-00152-JRG,
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`2020 WL 4040716 (E.D. Tex. July 17, 2020) (inter partes review); Intell. Ventures II LLC v.
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`FedEx Corp., No. 2:16-CV-00980-JRG, 2017 WL 4812434, at *2 (E.D. Tex. Oct. 24, 2017)
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`(inter partes review).
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`Defendants have not satisfied their burden to show a stay would be appropriate at this late
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`stage of the action. The parties received a jury verdict over three weeks ago and are poised to
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`complete post-trial motion practice expeditiously. Granting a stay at this time would unduly
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`prejudice Seagen, which has committed significant time and resources to obtain a jury verdict
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`and is entitled to prompt entry of a judgment. Further, a stay now would not help simplify the
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`case as the invalidity issues that Defendants are presenting to the Patent Office in the post-grant
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`review were tried to a verdict here already.
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`1.
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`Factor 1: A Stay of this Case Unduly Prejudices Seagen.
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`Given the jury verdict in Seagen’s favor, a delay—especially a two-year-plus delay—in
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`obtaining an appealable judgment in this action unduly prejudices Seagen. This factor weighs
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`heavily against a stay.
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`Seagen sought relief against DSC’s infringement promptly through this action, investing
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`considerable time, money, and resources into vindicating its patent rights, rebutting Defendants’
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`invalidity challenges, and obtaining a jury verdict. See, e.g, Solas OLED, 2020 WL 4040716, at
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`*2 (finding prejudice “factor weighs heavily against a stay” given “discovery is completed and
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`trial is only a few months away”); see also KAIST IP, 439 F. Supp. 3d at 872 (“If a final
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`judgment in this case is entered, as KAIST has requested (Dkt. No. 587), KAIST’s right to
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`enforce that judgment will stand regardless of any subsequent determinations regarding the
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`underlying patent.”). In contrast, Defendants are seeking to leverage trailing proceedings before
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`the Patent Office to avoid the jury verdict and the judgment of this Court, and with no guarantee
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`of success to invalidate the asserted claims. Defendants assert that the Patent Office’s review is
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`their “one and only ‘bite’” at the apple (Motion at 6), rather than their second or third bite.
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`Defendants’ claim to prejudice has no teeth, having lost their first invalidity challenge at
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`summary judgment before the Court and their second bite at the invalidity apple with the jury.
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`By the time that the Patent Office’s post-grant review decision and any appeal from that
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`decision are complete, memories of trial will have faded. Cf. Allvoice Devs. US, LLC v.
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`Microsoft Corp., No. 6:09-CV-366, 2010 WL 11469800, at *4 (E.D. Tex. June 4, 2010) (denying
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`stay pending interference) (“[A] stay in this case would create a substantial delay that could
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`cause prejudice by preventing Plaintiff from moving forward with its infringement claims and by
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`risking the loss of evidence as witnesses become unavailable and memories fade.”). Now, the
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`trial record is fresh. On this record, Seagen would be prejudiced if the post-verdict proceedings
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`and entry of final judgment get delayed for up to two years.
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`Contrary to Defendants’ argument, Seagen has not engaged in any delay or
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`gamesmanship in protecting its patent rights; rather, Seagen has acted expeditiously. Seagen
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`filed its complaint in this case as soon as the ’039 patent issued. This was just months after FDA
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`approval of the accused product. Under the safe harbor provision of the U.S. patent act, Seagen
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`could not have filed its complaint earlier than the product’s FDA approval, even if the
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`’039 patent had issued earlier. 35 U.S.C. § 271(e)(1). Seagen also subsequently dropped its
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`infringement arguments on claims 6–8, streamlining this action and focusing the parties’ dispute.
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`Seagen then further simplified the disputes between the parties, conserving judicial and
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`administrative resources, by disclaiming the entire remaining term of claims 6–8 in the Patent
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`Office. (Motion at 4; Dkt. 392-12, Ratliff Ex. 11.) Thus, contrary to Defendants’ argument,
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`Seagen has simplified, not “complicated these proceedings.” (Motion at 6.)
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`Seagen does not dispute that the only relief it seeks is monetary, but, regardless, the Court
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`should timely enter judgment to vindicate Seagen’s patent rights. See, e.g., KIPB LLC v.
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`Samsung Elecs. Co., No. 2:19-CV-00056-JRG-RSP, 2019 WL 6173365, at *3 (E.D. Tex.
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`Nov. 20, 2019); NFC Tech. LLC v. HTC Am., Inc., No. 2:13-CV-1058-WCB, 2015 WL 1069111,
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`at *2 (E.D. Tex. Mar. 11, 2015) (explaining that an interest in preventing delay in enforcement of
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`patent rights “is entitled to weight”). None of Defendants’ cited cases decided this factor in
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`favor of a stay on the basis that the patentee had requested only monetary damages. See, e.g.,
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`CyWee Grp. Ltd. v. Samsung Elecs. Co., No. 2:17-CV-00140-WCB-RSP, 2019 WL 11023976, at
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`*6 (E.D. Tex. Feb. 14, 2019) (finding “the prejudice factor as cutting in [patentee’s] favor” due
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`otherwise to “postponement in the plaintiff's obtaining a judgment” even though patentee sought
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`only monetary damages); Stragent LLC v. BMW of N. Am., LLC, No. 6:16-CV-446, 2017 WL
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`3709083, at *2 (E.D. Tex. July 11, 2017) (finding prejudice factor to be neutral because the
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`patentee sought only monetary damages); VirtualAgility Inc. v. Salesforce.com, Inc., 759 F.3d
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`1307, 1318 (Fed. Cir. 2014) (concluding the undue prejudice factor “weighs slightly against a
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`stay” even though patentee requested only monetary damages). Seagen’s decision to forego
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`Case 2:20-cv-00337-JRG Document 398 Filed 05/04/22 Page 9 of 13 PageID #: 15499
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`injunctive relief does not make it any less eligible for prompt entry of a judgment.
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`2.
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`Factor 2: A Stay at This Advanced Stage of the Case Would Not Ease
`the Burdens of Litigation.
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`With the jury verdict issued over three weeks ago, the parties have nearly completed this
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`case before the Court. The second factor in the traditional analysis—“whether discovery is
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`complete and whether a trial date has been set”—therefore weighs heavily against a stay.
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`Smartflash LLC v. Apple Inc., 621 F. App’x 995, 1001 (Fed. Cir. 2015). This remains true even
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`if, as Defendants’ urge, the Court considers the remaining burden of litigation on the parties and
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`the Court in analyzing this factor. (Motion at 5.) As this Court has explained, “when the case
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`reaches post-trial motions, it is most efficient for the Court to move forward with all post-trial
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`motions so that the Federal Circuit may review the entire case on appeal, including the validity
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`of all of the plaintiff's patents, as soon as possible.” Smartflash LLC v. Apple, Inc., No. 6:13-
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`CV-447-JRG, 2015 WL 3453343, at *11 (E.D. Tex. May 29, 2015) (reversed-in-part on other
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`grounds) (emphasis in original).
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`While a few post-verdict issues remain to be resolved, none would require the parties or
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`Court to expend significant time and resources, especially compared to the investment to date in
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`trying this case to verdict. See, e.g., VirnetX Inc., 2018 WL 398433, at *4 (finding the advanced
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`stage of a case weighs against a stay because “[t]he vast majority of litigation costs have already
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`been spent and the heaviest burden of the litigation has already fallen upon the Court”); see also
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`Smartflash LLC, 621 F. App’x at 1004; Orion IP, LLC v. Mercedes-Benz USA, LLC, No. 6:05
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`CV 322, 2008 WL 5378040, at *8 (E.D. Tex. Dec. 22, 2008) (vacated on other grounds). As
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`Seagen stated in its Motion for Entry of Post-Trial Briefing Schedule (Dkt. 390), the parties can
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`address all of their outstanding issues in one set of briefing, totaling 65 pages per side and lasting
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`no more than one month. Should a bench trial prove necessary to resolve Defendants’ equitable
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`defense, a single day should suffice, as Defendants have admitted that their prosecution laches
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`case “will be short.” (2/24/2022 Hr’g Tr. at 21:11–25.) In contrast, the Patent Office
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`proceedings are not scheduled to reach a final written decision for about a year, and appeals
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`could draw those proceedings out for another year or more. Clearly, this case in Texas is the
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`more advanced proceeding, and it should proceed to judgment without further delay.
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`3.
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`Factor 3: Granting a Stay at This Stage of Litigation Will Not
`Simplify the Issues.
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`Defendants have already presented their invalidity arguments to this Court in a motion
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`for summary judgment and to the jury during trial. As the Court found under similar
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`circumstances, “a stay will neither simplify the issues in question (which have been decided) nor
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`will it streamline a trial that has already taken place.” Smartflash LLC, 2015 WL 3453343, at *6
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`(reversed-in-part on other grounds). This factor therefore also weighs strongly against granting
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`Defendants’ request for a stay.
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`Defendants argue that a potential invalidity finding from the Patent Office could
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`“simplify” the case by disposing of this case in its entirety, but they misunderstand the analysis
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`under this factor. As the Federal Circuit has explained, the “focus of this factor is on
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`streamlining or obviating the trial by providing the district court with the benefit of the PTO’s
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`consideration of the validity of the patents before either the court or the jury is tasked with
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`undertaking that same analysis.” Smartflash LLC, 621 F. App’x at 1000 (emphasis added).
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`Because Defendants’ Motion comes after the Court’s decision on Defendants’ motion for
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`summary judgment and after the jury verdict, “many of the advantages flowing from the
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`agency’s consideration of the issues—such as resolving discovery problems, using pre-trial
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`rulings to limit defenses or evidence at trial, limiting the complexity of the trial, etc.—cannot
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`[now] be realized.” Id. The mere possibility that the Patent Office will cancel the asserted
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`claims is “insufficient, standing alone, to support a stay motion.” VirnetX Inc., 2018 WL
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`398433, at *4.
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`Defendants’ cited cases do not change the analysis as they present circumstances far
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`removed from the parties’ and Court’s here. In VirtualAgility, the parties had not begun
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`discovery, nor had a trial date been set, when the accused infringer filed its motion to stay. See
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`VirtualAgility Inc., 759 F.3d at 1317. In Ultratec—a non-binding case—the Patent Office had
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`already issued written decisions invalidating all but one of the asserted claims, and the court had
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`concerns that there would be competing appeals at the Federal Circuit should the district court
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`case proceed. See Ultratec, Inc. v. Sorenson Commc’ns, Inc., No. 13-CV-346-BBC, 2015 WL
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`2248437, at *4 (W.D. Wis. May 13, 2015). Here, the parties have already received a jury
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`verdict, and the final written decision by the Patent Office is about a year away. An appeal from
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`the Patent Office could take another year after that. The facts supporting a stay in VirtualAgility
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`and Ultratec are simply not present in this case.
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`IV. CONCLUSION
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`Defendants’ motion for a stay is an improper motion for reconsideration. Defendants
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`have not demonstrated any reason for the Court to reconsider its denial of their last request for a
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`stay and have forfeited the new arguments they present in the Motion. But should the Court
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`consider Defendants’ arguments on the merits, Defendants have not satisfied their burden to
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`show that a stay of this case would be appropriate under any of the three factors for evaluating
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`such a request. For these reasons, Defendants’ motion for a stay of this case should be denied
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`and a post-trial schedule should be set that facilitates prompt entry of judgment.
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`Dated: May 4, 2022
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`
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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
`
`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
`
`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
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`Of Counsel:
`
`T. John Ward, Jr.
`Texas State Bar No. 00794818
`jw@wsfirm.com
`Wesley Hill
`Texas State 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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`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 4th day of May, 2022.
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`/s/ Melissa R. Smith
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