Case 2:20-cv-00337-JRG Document 428 Filed 07/14/22 Page 1 of 5 PageID #: 16391
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Plaintiff,
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`SEAGEN INC.,
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`v.
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`CASE NO. 2:20-cv-00337-JRG
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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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`DAIICHI SANKYO COMPANY, LIMITED’S MOTION
`TO DESIGNATE NEW EXPERT AND CONTINUE BENCH TRIAL
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`Daiichi Sankyo Company, Limited (“Daiichi Sankyo Japan”) respectfully moves to
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`designate a new expert on the issue of prosecution laches and for a continuance of the bench trial
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`currently scheduled for June 28, 2022 (see Dkt. No. 403). The reason for Daiichi Sankyo
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`Japan’s request is that its prosecution laches expert, Mr. David Manspeizer, is unavailable to
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`testify at the upcoming bench trial and can no longer serve as a testifying expert for the
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`foreseeable future
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`. (Manspeizer Decl. ¶ 5.)1 Mr. Manspeizer first notified
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`Daiichi Sankyo Japan
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` on the evening of June 14, 2022. (Id.) Daiichi Sankyo
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`Japan promptly notified and conferred with Seagen Inc. (“Seagen”) regarding Mr. Manspeizer’s
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`status on June 16, seeking to reach agreement on the present motion. Seagen refused Daiichi
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`Sankyo Japan’s request to replace Mr. Manspeizer with a new expert and for a continuance of
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`1 Daiichi Sankyo Japan submits the June 19, 2022 Declaration of Mr. David Manspeizer
`concurrently with this motion.
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`Case 2:20-cv-00337-JRG Document 428 Filed 07/14/22 Page 2 of 5 PageID #: 16392
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`the bench trial, seeking again to preclude Daiichi Sankyo Japan from presenting live testimony
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`concerning prosecution laches in violation of Federal Rule of Civil Procedure Rule 43(a). (See
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`Dkt. No. 396 at pp. 2-3.)
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`Mr. Manspeizer’s opinion serves as a key basis for Daiichi Sankyo Japan’s prosecution
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`laches defense and Mr. Manspeizer is its only expert witness that has offered an opinion as to
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`this complete defense of alleged infringement.2 Moreover, for the reasons stated in Daiichi
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`Sankyo Japan’s Opposition to Seagen’s Motion for Entry of an Accelerated Post-Trial Briefing
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`Schedule (Dkt. No. 396), Daiichi Sankyo Japan maintains that a trial—including live witness
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`testimony—is necessary to a proper presentation of its prosecution laches defense.3 As such,
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`Daiichi Sankyo Japan will suffer material, undue prejudice if it is not permitted to substitute a
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`new prosecution laches expert in Mr. Manspeizer’s place. To facilitate a smooth transition,
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`Daiichi Sankyo Japan agrees that any substitute expert will adopt the opinions in Mr.
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`Manspeizer’s November 22, 2021 report and December 15, 2021 deposition.
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`In the limited time since the June 14, 2022 notification of
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`Daiichi Sankyo Japan has secured the agreement of a qualified expert, Mr. Robert Stoll, to testify
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`in place of Mr. Manspeizer on the issue of prosecution laches.4 Mr. Stoll, however, is not
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`available until mid-July due to another trial he is participating in and other professional matters.
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`2 Mr. Manspeizer set out his opinions concerning prosecution laches in his expert report dated
`November 22, 2021. He was subsequently deposed by Seagen on December 15, 2021.
`(Manspeizer Decl. ¶ 2.)
`3 These reasons include that (1) significant evidence is not available to the Court in the current
`trial record and (2) cross-examination gives the Court, as the trier of fact, the “opportunity to
`judge the witnesses’ credibility,” see Fed. R. Civ. P. 52(a)(6), and the chance to ask clarifying
`questions, see Fed. R. Evid. 614(b). Further, pursuant to the Federal Rules of Civil Procedure
`and due process, Daiichi Sankyo Japan should be entitled to present live evidence of its
`prosecution laches defense.
`4 Mr. Stoll is a former United States Patent and Trademark Office patent commissioner with
`more than 35 years of experience in patent prosecution.
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`Case 2:20-cv-00337-JRG Document 428 Filed 07/14/22 Page 3 of 5 PageID #: 16393
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`Accordingly, to limit undue prejudice to Daiichi Sankyo Japan resulting from unforeseen
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`circumstances, Daiichi Sankyo Japan respectfully requests it be permitted to substitute its
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`prosecution laches expert and continue the bench trial on a date after July 18, 2022.
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`Case 2:20-cv-00337-JRG Document 428 Filed 07/14/22 Page 4 of 5 PageID #: 16394
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`Dated: June 20, 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
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`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 428 Filed 07/14/22 Page 5 of 5 PageID #: 16395
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that all counsel of record who have consented to
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`electronic service are being served with a copy of this document via electronic mail on June 20,
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`2022.
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` /s/ Preston K. Ratliff II
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`CERTIFICATE OF CONFERENCE
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`On June 16, 2022, June 17, 2022, and June 19, 2022, pursuant to Local Rule CV-7(h),
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`counsel for Daiichi Sankyo Japan met and conferred with counsel for Plaintiff via email who
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`indicated that it opposes the relief sought by this Motion.
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` /s/ Preston K. Ratliff II
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