Case 2:20-cv-00337-JRG Document 401 Filed 05/11/22 Page 1 of 9 PageID #: 15547
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE 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, and
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`ASTRAZENECA PHARMACEUTICALS
`LP and ASTRAZENECA UK LTD.,
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`Intervenor-Defendants.
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`CASE NO. 2:20-cv-00337-JRG
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`DEFENDANTS’ REPLY IN SUPPORT OF ITS MOTION TO STAY
`POST-JURY TRIAL PROCEEDINGS PENDING POST-GRANT REVIEW
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`Case 2:20-cv-00337-JRG Document 401 Filed 05/11/22 Page 2 of 9 PageID #: 15548
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`Seagen offers no convincing reason to burden the Court and the parties with numerous
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`post-jury trial proceedings, including a bench trial on prosecution laches as well as extensive
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`post-trial motions, given the Patent Office’s determination that Seagen’s patent claims are “more
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`likely than not” invalid. A stay would conserve valuable resources of the Court and the parties.
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`Seagen also fails to identify any cognizable undue prejudice from a stay—certainly no harm that
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`could not be recompensed through monetary damages if Seagen’s patent were to survive the
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`PGR.1 Instead, Seagen mischaracterizes Defendants’ motion as a request for reconsideration of
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`the Court’s denial of Defendants’ request for stay during trial. But Defendants’ prior oral
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`request—made the morning of the day the jury deliberated—was to stay the jury trial. In
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`contrast, the present fully-briefed motion seeks to stay post-trial proceedings, which, given the
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`jury verdict and the issues unresolved by the jury, will be extensive.
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`Denying a stay will unduly prejudice Defendants by undermining their statutory right to
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`challenge Seagen’s patent claims through PGR. Seagen is trying to eviscerate that statutory right
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`by opposing a stay and insisting that this Court skip a bench trial on prosecution laches and
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`accelerate post-jury trial briefing before all issues are tried and the prevailing party is
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`determined.2 The Court should not reward Seagen for its tactical maneuvering of adding patent
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`claims to this case to avoid PGR institution, dropping them from this case after institution was
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`denied, and then disclaiming them altogether after institution was granted in an effort to reverse
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`that decision, only to now rush the Court through post-jury trial proceedings for fear of the PGR
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`trial. Seagen’s desire to race to the Federal Circuit should not override due process on the issues
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`1 If the post-grant review confirms any of the asserted claims, and that finding is affirmed on
`appeal, statutory estoppel under 35 U.S.C. § 325(e)(2) will attach. A stay pending the conclusion
`of the PGR will therefore serve judicial efficiency and conserve the parties’ resources.
`2 Seagen could not muster any arguments in rebuttal to Daiichi Sankyo Japan’s opposition to
`Seagen’s request for an unusual and accelerated post-jury trial procedure.
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`Case 2:20-cv-00337-JRG Document 401 Filed 05/11/22 Page 3 of 9 PageID #: 15549
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`yet to be decided and Defendants’ statutory right to the PGR that has been instituted despite
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`Seagen’s efforts to delay and circumvent it.
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`I.
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`THE COURT SHOULD STAY PROCEEDINGS
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`Congress implemented the PGR system to allocate to the Patent Office the responsibility
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`for determining promptly whether it issued a patent in error. Here, the Patent Office has
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`determined that it is “more likely than not” that it made a mistake in issuing Seagen’s patent.
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`This Court should stay its proceedings to allow the Patent Office to complete its review.
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`Seagen’s opposition cites various cases involving inter partes review and reexamination
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`proceedings. Opp. at 5. It nowhere addresses that post-grant review is different because it can
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`result in broad estoppel designed to simplify subsequent infringement proceedings if the patent is
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`confirmed. None of its cited cases concerned PGR proceedings, and Seagen is therefore
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`incorrect that those cases arise “under similar circumstances.” Id.
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`Factor 1: Lack of Undue Prejudice. Seagen concedes that this case concerns only
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`money. Opp. at 7. This concession simplifies the Court’s analysis of this factor. As the Federal
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`Circuit has explained, “whether the patentee will be unduly prejudiced by a stay” focuses “on the
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`patentee’s need for an expeditious resolution of its claim.” VirtualAgility, Inc. v. Salesforce.com,
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`Inc., 759 F.3d 1307, 1318 (Fed. Cir. 2014). “[A] stay will not diminish the monetary damages to
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`which [the patentee] will be entitled if it succeeds in its infringement suit—it only delays
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`realization of those damages.” Id. Seagen is not running low on funds, nor are any of the
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`Defendants. A delayed recovery “alone does not establish undue prejudice,”3 and courts in this
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`district have found no prejudice where, as here, only monetary damages are sought. See Uniloc,
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`2015 WL 11199063, at *4; Stingray Music USA, Inc. v. Music Choice, No. 2:16-cv-00586-JRG-
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`3 Uniloc USA, Inc. v. Corbis Corp., No. 6:13-cv-942-RWS-KNM, 2015 WL 11199063, at *4
`(E.D. Tex. July 6, 2015).
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`Case 2:20-cv-00337-JRG Document 401 Filed 05/11/22 Page 4 of 9 PageID #: 15550
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`RSP, 2017 WL 9885167, at *2 (E.D. Tex. Dec. 12, 2017). The cases Seagen invokes are
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`inapposite. KAIST, Solas OLED, and Intell. Ventures II involved movants who had significantly
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`delayed filing their petitions for Patent Office review and moving for a stay.4 Here, as the Patent
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`Office itself acknowledged, Petitioners promptly requested PGR. Dkt. 392, Ex. 1 at 7.5
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`Seagen asserts it will be unduly prejudiced by the passage of time because “memories of
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`trial will have faded.” Opp. at 6. That argument is pure make-weight. The Allvoice case Seagen
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`invokes involved a concern that witnesses’ memories might fade prior to testifying. Allvoice
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`Devs. US, LLC v. Microsoft Corp., No. 6:09-cv-366, 2010 WL 11469800, at *4 (E.D. Tex.
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`June 4, 2010). There is no such concern here, for the jury trial is over. To the extent the passage
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`of time could impact the Court’s consideration of post-trial motions, the Court will always have
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`the benefit of the trial transcript and exhibits.
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`Seagen proclaims that it “has not engaged in any delay or gamesmanship.” Opp. at 6.
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`But Seagen nowhere explains why it did not initially assert Claims 6-8 in litigation, then asserted
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`Claims 6-8 in its infringement contentions, and then dropped those assertions. Seagen now has
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`entirely disclaimed Claims 6-8 and has requested that the Patent Office enter an adverse
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`judgment against it on those claims, confirming their invalidity. See Dkt. 392, Ex. 11. Seagen
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`can hardly take credit for “streamlining this action” when the opposite is the case. Dkt. 398 at 7.
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`4 See KAIST IP US LLC v. Samsung Elecs. Co., 439 F. Supp. 3d 860, 872 (E.D. Tex. Feb. 13,
`2020) (“The Court notes the extreme dilatoriness and delay of Samsung’s request for
`reexamination.”); Solas OLED Ltd. v. Samsung Display Co., Ltd., No. 2:19-cv-00152-JRG, 2020
`WL 4040716, (E.D. Tex. July 17, 2020) (months-long delay in filing motion to stay after first
`PGR instituted); Intell. Ventures II LLC v. FedEx Corp., No. 16-cv-00980-JRG, 2017 WL
`4812434 (E.D. Tex. Oct. 24, 2017).
`5 KIPB and NFC Tech., where the court focused on the delay of monetary damages, also did not
`involve a situation where the patentee engaged in dilatory tactics. See KIPB LLC v. Samsung
`Elecs. Co., No. 2:19-cv-00056-JRG-RSP, 2019 WL 6173365, at *2-3 (E.D. Tex. Nov. 20, 2019)
`(also noting lack of estoppel of defendant’s invalidity arguments in ex parte reexamination); NFC
`Tech. LLC v. HTC Am., Inc., No. 2:13-cv-1058-WCB, 2015 WL 1069111 (E.D. Tex. Mar. 11, 2015).
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`Case 2:20-cv-00337-JRG Document 401 Filed 05/11/22 Page 5 of 9 PageID #: 15551
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`Factors 2 and 3: Simplification & Case Status. Seagen misses the point when it fails to
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`address the unique statutory right of the PGR, which distinguishes that scheme from other Patent
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`Office proceedings. Seagen mischaracterizes the PGR as a “second” “bite at the apple” that “has
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`no teeth,” but never explains why. Opp. at 6. The PGR system gives third parties a single
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`chance to ask the Patent Office to review its decision to issue a patent—provided patent
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`challengers make that request promptly, as Petitioners did here. Congress intended such disputes
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`to be decided, once and for all, before the Patent Office. That is what should happen here.
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`Seagen is incorrect when it suggests that the PGR will not simplify this case because only
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`a “few” issues remain and “none would require the parties or the Court to expend significant
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`time and resources.” Opp. at 8. The Court has several outstanding issues to resolve in
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`connection with Defendants’ prosecution laches defense and the parties’ post-trial motions,
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`including potential motions for judgment as a matter of law and for a new trial. As Daiichi
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`Sankyo Japan explained in its Opposition to Seagen’s Motion for Entry of an Accelerated Post-
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`Trial Briefing Schedule, forgoing a trial on Defendants’ prosecution laches defense, as Seagen
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`now requests, would be inconsistent with the Rules of Civil Procedure and violate due process.
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`Dkt. 396 at 1-4. These outstanding issues will require additional briefing and an evidentiary
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`hearing, which will take significant time and resources to resolve.6
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`Seagen also is incorrect in minimizing the remaining issues regarding invalidity. Opp.
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`at 9. Substantial post-jury trial briefing on invalidity issues (and potential Federal Circuit
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`6 Seagen’s authorities are inapposite. In VirnetX, the movant sought to stay proceedings after the
`case had already “gone through multiple rounds of dispositive and post-trial motion practice . . .
`and three trials―the last of which was at Apple’s request.” VirnetX Inc. v. Apple Inc., No. 6:12-
`cv-00855-RWS, 2018 WL 398433, at *4 (E.D. Tex. Jan. 12, 2018). In Smartflash and Orion, the
`movant’s lack of diligence weighed against the stay. Smartflash LLC v. Apple Inc., 621 F. App’x
`995, 1001-02 (Fed. Cir. 2015); Orion IP, LLC v. Mercedes-Benz USA, LLC, No. 6:05-cv-322, 2008
`WL 5378040, at *8 (E.D. Tex. Dec. 22, 2008). None of these circumstances applies here.
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`Case 2:20-cv-00337-JRG Document 401 Filed 05/11/22 Page 6 of 9 PageID #: 15552
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`proceedings) remain, including on the issues that are now before the Patent Office. The Court
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`and the parties should not expend cost, time, and resources to resolve issues the Patent Office is
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`statutorily authorized and committed to address. See Ultratec, Inc. v. Sorenson Commc’ns, Inc.,
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`No. 13-cv-346-bbc, 2015 WL 2248437, at *4 (W.D. Wis. May 13, 2015) (granting post-verdict
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`stay where many post-trial motions remained before the court). Accordingly, the totality of
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`circumstances weighs in favor of granting a stay.
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`II.
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`DEFENDANTS DO NOT SEEK “RECONSIDERATION”
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`Seagen incorrectly re-labels Defendants’ motion to stay as a motion for reconsideration.
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`It is not. When Defendants made their oral stay motion, the only issue before the Court was
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`whether to stay the ongoing jury trial when the jury was “assembled in the jury room” and
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`“waiting for the Court to bring them in and give its final jury instructions and hear closing
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`arguments from counsel.” Dkt. 378, Trial Tr. (Day 5) at 50. Given that the jury was about to
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`deliberate, the Court denied the motion. The jury was instructed, and returned a verdict.
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`Defendants cannot seek reconsideration of that ruling without a time machine.7
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`Defendants’ motion is exactly what it says it is: a request that the Court take stock of this
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`case and parallel proceedings and decide whether a stay of this case is appropriate. It is.
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`7 Even if the Court adopts Seagen’s re-framing of Defendants’ motion, it still should be granted.
`As the Fifth Circuit explained, “when a district court rules on an interlocutory order”—such as
`the Court’s denial of Defendants’ oral stay request—“it is free to reconsider and reverse its
`decision for any reason it deems sufficient, even in the absence of new evidence or an
`intervening change in or clarification of the substantive law.” Saqui v. Pride Cent. Am., LLC,
`595 F.3d 206, 210 (5th Cir. 2010) (internal quotation marks and citation omitted) (emphasis
`added). Seagen’s argument that Defendants must demonstrate “any new evidence, any need to
`correct a clear error of law or prevent manifest injustice, or any intervening change in law”
`incorrectly refers to a different procedural standard, the standard for reconsideration of a final
`judgment. See Hazim v. Schiel & Denver Publ’g, Ltd., No. 12-cv-1286-JLR, 2015 U.S. Dist.
`LEXIS 119340, at *4-5 (S.D. Tex. Sept. 8, 2015).
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`Case 2:20-cv-00337-JRG Document 401 Filed 05/11/22 Page 7 of 9 PageID #: 15553
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`Dated: May 11, 2022
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`Respectfully submitted,
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`/s/ Preston K. Ratliff II
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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
`
`J. Mark Mann
`State Bar No. 12926150
`mark@themannfirm.com
`MANN | TINDEL | THOMPSON
`300 West Main Street
`Henderson, Texas 75652
`(903) 657-8540
`(903) 657-6003 (fax)
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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
`Ashley N. Mays-Williams
`Paul Hastings LLP
`200 Park Avenue
`New York, NY 10166
`(212) 318-6000
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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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`Case 2:20-cv-00337-JRG Document 401 Filed 05/11/22 Page 8 of 9 PageID #: 15554
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`/s/ David I. Berl
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`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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`Attorneys 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
`Jessamyn Berniker
`Jessica L. Pahl
`Kathryn Kayali
`Kevin Hoagland-Hanson
`Angela X. Gao
`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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`Case 2:20-cv-00337-JRG Document 401 Filed 05/11/22 Page 9 of 9 PageID #: 15555
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`CERTIFICATE OF SERVICE
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`I hereby certify that a copy of the foregoing document was filed electronically in
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`compliance with Local Rule CV-5(a). Therefore, this document was served on all counsel who
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`are deemed to have consented to electronic service on this the 11th day of May, 2022.
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` /s/ Preston K. Ratliff II
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