Case 2:20-cv-00337-JRG Document 462 Filed 09/12/22 Page 1 of 9 PageID #: 19682
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CASE 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, and
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`ASTRAZENECA
`PHARMACEUTICALS LP and
`ASTRAZENECA UK LTD.,
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` Intervenor-Defendants.
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`DEFENDANTS’ SUR-REPLY TO SEAGEN’S MOTION FOR AN EXCEPTIONAL
`CASE FINDING AND ATTORNEY’S FEES UNDER 35 U.S.C. § 285
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`Case 2:20-cv-00337-JRG Document 462 Filed 09/12/22 Page 2 of 9 PageID #: 19683
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`The litigation and trial record demonstrate that this was a hard-fought litigation where the
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`patent that Seagen drafted in attempt to lay claim to Daiichi Sankyo Japan’s drug Enhertu®1 was
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`met with strong litigation defenses of lack of written description, lack of enablement, anticipation,
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`prosecution laches, and non-infringement. And while Seagen belatedly claims now that
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`Defendants’ defenses were “weak,” it speaks volumes that Seagen never sought summary
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`judgment as to any of these defenses. Moreover, Seagen cannot credibly dispute that Daiichi
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`Sankyo Japan produced more than 18,250 documents (including the sole product-defining
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`documents that were filed with the FDA and totaling over 331,000 pages) reflecting the research
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`and development of Enhertu®, as well as certain laboratory notebooks after they were identified
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`for the first time by Dr. Morita in his deposition, and proffered extensive 30(b)(6) testimony
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`concerning the invention and commercial development of Enhertu®. Seagen attempts to bootstrap
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`a single discovery sanction into an exceptional case, yet cites no case law to dispute that attorney’s
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`fees awarded as a result of sanctioned conduct would constitute an impermissible double recovery.
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`Seagen’s reply brief ignores the totality of this dispute and instead attempts to spin a false
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`narrative of Daiichi Sankyo Japan allegedly copying and misusing ADC technology proprietary to
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`Seagen. Yet, Seagen ignores that, in Seagen and Daiichi Sankyo Japan’s separate arbitration
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`(which involved exactly the same Seagen allegations of misuse of confidential information), the
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`arbitrator rejected Seagen’s position, finding the accused product Enhertu® was neither Seagen’s
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`technology nor an improvement that related to Seagen’s technology and dismissed the notion that
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`Daiichi Sankyo Japan or any of its employees acted in bad faith.2 Seagen’s speculation about what
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`1 (DX-0006 at 842 (“It is quite manifest that Applicants are trying to lay claim on Daiichi
`[Sankyo Japan’s DS-8201] . . . .”) (emphasis in original); see also Dkt. 452 (“Reply”) at 4.)
`2 (Dkt. 447 (“Opp.”) at 15, Ex. 6-7.)
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`Case 2:20-cv-00337-JRG Document 462 Filed 09/12/22 Page 3 of 9 PageID #: 19684
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`the “jury implicitly found” is a tacit admission that the jury’s verdict includes no findings to the
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`contrary.3 As explained further below, Seagen’s motion should be denied.
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`A.
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`Defendants’ Litigation Positions Were “Proper and Reasonable”
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`Unsurprisingly, Seagen does not dispute that Defendants had strong invalidity positions
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`and again concedes (this time by omission) that prior to claim construction, Defendants had a
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`strong non-infringement position. After claim construction, Seagen focuses on Daiichi Sankyo
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`Japan’s use of “free drug” and “intracellular cleavage,” referring to Dr. Lambert’s explanation that
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`these terms were not used with the same meaning as in the ’039 patent as “hairsplitting.” But
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`Seagen ignores that the meaning of claim language is central to the infringement inquiry.
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`CommScope Techs. LLC v. Dali Wireless Inc., 10 F.4th 1289, 1298 (Fed. Cir. 2021) (“reliance on
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`the claim terms as construed by the district court is not ‘hair-splitting’”) (emphasis added).
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`And Seagen further ignores Defendants’ arguments concerning Seagen’s failure to proffer
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`actual experimental evidence (Opp. at 5), as well as the fact that Seagen never moved for summary
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`judgment on the issue of non-infringement. Seagen’s belated suggestion that Defendants’ non-
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`infringement arguments were weak should not be entertained.4 See Plastronics Socket Partners,
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`Ltd. v. Hwang, No. 2:18-CV-00014-JRG, 2020 WL 1324733, at *10 (E.D. Tex. Mar. 20, 2020),
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`aff’d in part, rev’d in part Nos. 2020-1739, 1781, 2022 WL 108948 (Fed. Cir. Jan. 12, 2022)
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`(“Parties who believe a claim is fatally flawed, legally or factually, should seek an appropriate
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`judgement from the Court under the Federal Rule of Civil Procedure 12 or 56. They may not, in
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`lieu of this, lay behind the log throughout the trial and then expect attorneys’ fees under section
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`3 (Reply at 1.)
`4 Seagen relegates its “repackaging” argument to a footnote, and fails to respond to Defendants’
`arguments that (1) it never moved for summary judgment and (2) Daiichi Sankyo Japan could
`not have presented its prosecution laches argument prior to the June 2022 bench trial. (Opp.
`at 7.)
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`Case 2:20-cv-00337-JRG Document 462 Filed 09/12/22 Page 4 of 9 PageID #: 19685
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`285 for having to defend against such unchallenged claims.”).
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`B.
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`Fact Depositions and Document Production
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`Seagen’s belated complaints regarding discovery also ring hollow. Seagen does not—and
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`cannot—dispute that it never brought to the Court its (incorrect and unsupported) arguments that
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`Daiichi Sankyo Japan obstructed 30(b)(6) witness testimony. See Stone Basket Innovations v.
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`Cook Med. LLC, 892 F.3d 1175, 1181 (Fed. Cir. 2018) (“[A] party cannot simply hide under a
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`rock, quietly documenting all the ways it’s been wronged, so that it can march out its ‘parade of
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`horribles’ after all is said and done”). And Seagen continues to eschew the “totality of the
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`circumstances” standard by presenting an inaccurate picture of a small number of discrete items.
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`Daiichi Sankyo Japan proffered witnesses for many 30(b)(6) topics, including Enhertu®’s
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`“invention” and “research and development.”5 (Opp. at 8-10, Exs. 2-3.) Dr. Naito testified fully
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`to his designated topics (Opp. at 9-10); Seagen’s insistence to the contrary illustrates its flawed
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`conception of “invention.” That Drs. Morita and Miyazaki are named inventors on patents
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`covering Enhertu® does not mean they invented Enhertu®—these patents claim subject matter
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`broader than Enhertu® (e.g., DX-692 (claims non-Enhertu® ADCs and discloses Daiichi Sankyo
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`Japan’s own conjugation methods)) and, in any event, an “inventor” in patent law has a specific,
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`legal meaning.6 Here, contrary to Seagen’s false claims, contemporaneous evidence from 2012—
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`over seven years before Seagen even applied for the ’039 patent—corroborates that Dr. Naito was
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`the sole scientist that conceived of Enhertu® (i.e., is the sole “inventor”). (See Ex. A; see also
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`5 Seagen continues to blatantly mischaracterize the record concerning the scope of designated
`testimony, such as by arguing Dr. Naito was designated to testify regarding Seagen Topic No. 2
`when its own cited supports demonstrate Dr. Gormley was so designated. (Reply, Ex. A at 7.)
`6 Moreover, Dr. Miyazaki’s work indisputably did not concern Enhertu® and the protocols used
`by Dr. Morita do not constitute Enhertu®’s manufacturing process. (Opp. at 12-13, 15.)
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`Case 2:20-cv-00337-JRG Document 462 Filed 09/12/22 Page 5 of 9 PageID #: 19686
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`Opp. at 10.) Dr. Naito unsurprisingly disagreed with Seagen’s insinuations otherwise.
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`Similarly, Dr. Gormley testified to the “development” of Enhertu®.7 (Opp. at 8-10.)
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`Seagen claims Dr. Gormley should have testified as to the supposed roles of Drs. Morita and
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`Miyazaki, but ignores that Seagen never even asked Dr. Gormley about Dr. Miyazaki. That Dr.
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`Gormley was not aware of Dr. Morita’s work does not mean he was unprepared; he testified that
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`many individuals helped to commercially develop Enhertu® (see Opp. at 10)—it is unreasonable
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`to expect that he remember the specific role of every scientist who worked on the development of
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`the project over a 10-year span.8 (See Opp. at 10 (describing broad scope of pharmaceutical
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`development).) Although Seagen appears to argue otherwise, the commercial development of
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`Enhertu® occurred after the compound was conceived of and invented by Dr. Naito.
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`Seagen alleges, but cites to no evidence to support its allegation, that Daiichi Sankyo Japan
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`objected to “prevent Dr. Morita from testifying that he had long ago informed Daiichi Sankyo
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`Japan counsel about the existence of his notebooks.” (Reply at 3.) This is just baseless conjecture
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`by Seagen. It is an attempt to distract from the fact that the totally of the circumstances
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`demonstrates that this litigation does not rise to the level of an exceptional case.9
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`Seagen tries to bolster its image before the Court through a misleading description of
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`irrelevant conduct (see Reply, Ex. B, at 8-9), but the facts show that Seagen is the party that
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`engaged in inappropriate conduct during depositions. Seagen, for example, never addresses its
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`7 Seagen mischaracterizes Dr. Gormley’s testimony to argue he did not speak with any Daiichi
`Sankyo Japan scientists when he stated, “I think Yusuke Ogitani was an individual that I spoke
`with” and, when pressed why, stated that “[i]t’s the name I recognize.” (Dkt. 452, Ex. C at 2-3.)
`8 Moreover, Seagen ignored Daiichi Sankyo Japan’s offer to prepare its witnesses with a
`“discrete set of documents” and “specific questions” to “ensure the witnesses have knowledge of
`responsive details.” (Opp. at 8.)
`9 Seagen’s real complaint is that fact witnesses did not agree to Seagen’s false copying narrative
`and/or that Dr. Naito did not invent Enhertu®.
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`Case 2:20-cv-00337-JRG Document 462 Filed 09/12/22 Page 6 of 9 PageID #: 19687
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`deposition speaking objections, nor does it dispute that it encouraged witnesses to “remember
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`more” during deposition, a plain attempt to coach the witness and substantively influence
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`testimony. (Opp. at 2, 12, Ex. 1.)
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`Ultimately, Seagen never addresses the voluntarily produced 331,000 pages reflecting
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`Enhertu®’s research and development, the fact that the laboratory notebooks do not depict
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`Enhertu®’s manufacturing process, or the fact that the ’039 patent claims no processes, i.e., the
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`totality of the circumstances. (Opp. at 12-13.) And, in stark contrast to Defendants, Seagen cites
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`no case law to dispute that attorney’s fees awarded as a result of conduct to which a sanction was
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`already issued would constitute an impermissible double recovery. (Opp. at 13.)
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`C.
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`The Undisputed Facts in this Action
`Demonstrate the Flawed Nature of Seagen’s Motion
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`Seagen cannot dispute that Daiichi Sankyo Japan invented, developed, and received at least
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`three patents covering Enhertu® years prior to Seagen filing its ’839 application, and that Seagen
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`drafted claims attempting to cover Enhertu® after learning Daiichi Sankyo Japan did not select
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`Seagen as its collaboration partner. These undisputed facts are relevant to (and undermine)
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`Seagen’s misconduct arguments based on willful infringement.10 (See Opp. at 14-15.) And
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`Seagen ignores that the Court concluded that enhancement of damages—which “is generally
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`reserved for egregious cases of culpable behavior”—was not warranted here. (Dkt. 432 at 2
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`(internal quotations omitted).) For the same reasons and in light of the Court’s precedent, Seagen
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`has failed to show why a grant of attorney’s fees nevertheless would be warranted. (Opp. at 15.)
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`CONCLUSION
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`For the reasons explained above and in Dkt. 447, Seagen’s motion should be denied.
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`10 And, unsurprisingly, the arbitrator rejected the same misconduct arguments concerning Daiichi
`Sankyo Japan’s alleged misuse of Seagen confidential information. (See supra p. 1.)
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`Case 2:20-cv-00337-JRG Document 462 Filed 09/12/22 Page 7 of 9 PageID #: 19688
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`Dated: September 1, 2022
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`By: /s/ Preston K. Ratliff II
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`Deron R. Dacus
`State Bar No. 00790553
`ddacus@dacusfirm.com
`THE DACUS FIRM, P.C.
`821 ESE Loop 323, Suite 430
`Tyler, Texas 75701
`Telephone: 903.705.1117
`Facsimile: 903.581.2543
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`J. Mark Mann
`State Bar No. 12926150
`mark@themannfirm.com
`G. Blake Thompson
`State Bar No. 24042033
`Blake@themannfirm.com
`MANN | TINDEL | THOMPSON
`300 West Main Street
`Henderson, Texas 75652
`Telephone: 903.657.8540
`Facsimile: 903.657.6003
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`Of Counsel:
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`Preston K. Ratliff II
`prestonratliff@paulhastings.com
`Ashley N. Mays-Williams
`ashleymayswilliams@paulhastings.com
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, New York 10166
`Telephone: 212.318.6000
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`Jeffrey A. Pade
`jeffpade@paulhastings.com
`PAUL HASTINGS LLP
`2050 M Street NW
`Washington, DC 20036
`Telephone: 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 462 Filed 09/12/22 Page 8 of 9 PageID #: 19689
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`Dated: September 1, 2022
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`By: /s/ David I. Berl
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`David I. Berl
`dberl@wc.com
`Jessamyn S. Berniker
`jberniker@wc.com
`Thomas S. Fletcher
`tfletcher@wc.com
`Jessica L. Pahl
`jpahl@wc.com
`Kathryn S. Kayali
`kkayali@wc.com
`Kevin Hoagland-Hanson
`khoagland-hanson@wc.com
`Andrew L. Hoffman
`ahoffman@wc.com
`Angela Gao
`agao@wc.com
`WILLIAMS & CONNOLLY LLP
`725 Twelfth Street, N.W.
`Washington, DC 20005
`Telephone: 202.434.5000
`Facsimile: 202.434.5029
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`Jennifer Parker Ainsworth
`Texas State Bar No. 00784720
`jainsworth@wilsonlawfirm.com
`WILSON, ROBERTSON & CORNELIUS,
`P.C.
`909 ESE Loop 323, Suite 400
`Tyler, Texas 75701
`Telephone: 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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`Case 2:20-cv-00337-JRG Document 462 Filed 09/12/22 Page 9 of 9 PageID #: 19690
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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 September
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`1, 2022.
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`/s/ Preston K. Ratliff II
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