Case 2:20-cv-00337-JRG Document 476 Filed 10/21/22 Page 1 of 8 PageID #: 21245
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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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`SEAGEN’S SUR-REPLY TO
`DEFENDANTS’ MOTION FOR NEW TRIAL
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` SF-4950537
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`Case 2:20-cv-00337-JRG Document 476 Filed 10/21/22 Page 2 of 8 PageID #: 21246
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`I.
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`INTRODUCTION
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`Nothing in Defendants’ motion or reply necessitates a new trial. Despite bearing a heavy
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`burden to establish entitlement to the extraordinary relief they seek, Defendants fail to show that
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`any prejudicial error occurred or that they are victims of substantial injustice.
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`II.
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`ARGUMENT
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`A.
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`The Court Properly Admitted Evidence
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`Defendants do not dispute that they agreed to set aside their MIL No. 3 related to
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`evidence or argument that Daiichi Sankyo Japan copied Seagen. They confirmed that with the
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`Court directly:
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`[THE COURT:] And it’s my understanding from the discussion we had in
`chambers that the resolution I’ve just announced into the record, which would
`effectively obviate the Defendant’s Motion in Limine No. 3, was perceived by both
`parties as leveling that playing field. And I assume you concur with that.
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`MR. MANN: I concur with that, Your Honor. That was our conversation in
`chambers.
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`(Trial Tr. (Day 1) at 130:6–12.) They claim that they were “reserving and not waiving all rights
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`concerning the evidence,” (Dkt. 473 at 1), but this position finds no support in the record.
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`Defendants decided to advance an independent development theory at trial and are left with the
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`consequences of that decision. Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373,
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`380–81 (5th Cir. 2012) (“[O]ne waives his right to object to the admission of evidence if he later
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`introduces evidence of the same or similar import himself.”).
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`Defendants also argue that “most, if not all,” of the evidence discussed in their motion
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`“was encompassed by granted MIL Nos. 1 and 3.” (Dkt. 473 at 1.) If that is true, Defendants
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`cannot explain why they did not object when evidence they contend contravened these MILs was
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`introduced and why these objections are not now waived.
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`Regardless, after two rounds of briefing, Defendants still make no effort to explain why
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`Case 2:20-cv-00337-JRG Document 476 Filed 10/21/22 Page 3 of 8 PageID #: 21247
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`the admission of this evidence, even if it was an error, was a prejudicial error that requires a new
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`trial. Their paltry showing cannot meet the requirements for such relief. Fed. R. Civ. P. 61
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`(“Unless justice requires otherwise, no error in admitting or excluding evidence—or any other
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`error by the court or a party—is ground for granting a new trial . . . the court must disregard all
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`errors and defects that do not affect any party’s substantial rights.”).
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`B.
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`The Court Properly Excluded Evidence
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`Defendants cannot dispute that prosecution under the standards of the European Patent
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`Office is not relevant to whether a patent is valid under U.S. law. Rather, Defendants argue that
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`the EPO documents should have been admitted because they are “consistent with and reinforce
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`Dr. Lambert’s invalidity testimony.” (Dkt. 473 at 4.) This assertion is not sufficient for
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`establishing admissibility, much less a new trial. Because this evidence would only have been
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`used in an improper attempt to “reinforce” Dr. Lambert’s testimony, and because there was a
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`clear risk of confusing the jury by presenting foreign prosecution documents, the Court correctly
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`excluded these documents. Medtronic, Inc. v. Daig Corp., 789 F.2d 903, 907–08 (Fed. Cir.
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`1986).
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`Nor is the email between Seagen’s CEO and other employees relevant to this case. The
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`passage Defendants highlight comes from another employee—not Seagen’s CEO—and after
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`multiple briefs, Defendants fail to articulate how it is probative of any claim or defense.
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`Defendants argue that it is probative of “Seagen’s state of mind,” but fail to show why Seagen’s
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`state of mind is relevant. (Dkt. 473 at 4.)
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`Defendants also have not explained why the excluded inventor testimony is probative of
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`§ 112 issues and outweighs the potential prejudice of its admission. The Court properly
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`excluded such testimony consistent with Federal Circuit guidance. See Solomon v. Kimberly-
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`Clark Corp., 216 F.3d 1372, 1379 (Fed. Cir. 2000).
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`Dr. Senter’s 30(b)(6) deposition testimony was also properly excluded. In two rounds of
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`briefing, Defendants still offer no explanation why they opted not to call Dr. Senter live. Nor do
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`Defendants address Fifth Circuit authority finding that any possible error in refusing to admit
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`deposition testimony is not prejudicial where the deponent is available live. See Brazos River
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`Auth. v. GE Ionics, Inc., 469 F.3d 416, 434 (5th Cir. 2006).
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`C.
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`The Jury Verdict Should Stand
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`Defendants’ argument that a new trial is warranted “if Seagen’s disclaimer invalidated or
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`altered the scope of any of the Asserted Claims” fails because Seagen’s disclaimer of unasserted
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`claims has no bearing on the claims asserted in this case. (Dkt. 473 at 2; See Dkts. 465, 475.)
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`Defendants again rely on WesternGeco, but once again do not show how it could apply here.
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`Defendants have also failed to demonstrate that there was any risk of inconsistency in the
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`jury’s verdict that would be hidden by the structure of the verdict form. Seagen explained in
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`opposition that the Court provided clear instructions on how the jury should evaluate the validity
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`of the ’039 patent, including instructions—consistent with relevant Federal Circuit authority—
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`“on how the priority date of the ’039 patent should be determined and how a patent could be
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`invalidated by references published before the patent’s priority date.” (Dkt. 466 at 8.)
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`Defendants’ only response is a citationless retort that such instruction is “insufficient.” (Dkt. 473
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`at 2.) But it is sufficient. The jury was properly instructed on the applicable law and the “jury is
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`presumed to follow the court’s instructions.” Datatreasury Corp. v. Wells Fargo & Co., No.
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`2:06-CV-72 DF, 2010 WL 5140807, at *3 (E.D. Tex. Sep. 27, 2010). Defendants cite no cases
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`to the contrary in its motion or reply.
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`D.
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`The Court’s Final Jury Instructions Were Correct
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`Defendants fail to meet their burden to show that any instruction the Court gave was
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`legally erroneous or that the errors had prejudicial effect. See Advanced Display Sys., Inc. v.
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`Case 2:20-cv-00337-JRG Document 476 Filed 10/21/22 Page 5 of 8 PageID #: 21249
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`Kent State Univ., 212 F.3d 1272, 1281 (Fed. Cir. 2000). As to written description and
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`enablement, Defendants still do not identify any substantive difference between the Court’s
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`instructions and their proposed instructions. Defendants suggest only that because Seagen
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`presented evidence beyond the specification, the jury should have been instructed that the
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`specification must supply the invention’s novel aspects. (Dkt. 473 at 3.) But this was not
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`prejudicial error. The jury was instructed that “[t]he specification must describe the full scope of
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`the claimed invention, including each element thereof,” which adequately informed the jury that
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`the specification must supply all aspects of the claimed invention. (Trial Tr. (Day 5) at 86:8-9.)
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`Moreover, as Seagen argued in opposition, it provided ample evidence of the sufficiency of the
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`disclosure itself in supporting all claimed elements in dispute, and it was proper for the jury to
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`consider what was known in the art for enablement purposes. (Dkt. 466 at 10.) Defendants do
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`not contest this on reply. (Dkt. 473 at 3.)
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`As to reasonable royalty, Defendants again fail to address why the Court’s instruction
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`was legally erroneous, let alone a prejudicial error. Defendants do not dispute that their
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`proposed instruction was merely “clarifying” and not required by Federal Circuit precedent.
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`E.
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`The Jury’s Damages Award Should Stand
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`Defendants seek to characterize their motion not as challenging something other than
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`admissibility, but their only arguments are that Ms. Distler “improperly relied upon license
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`agreements not comparable” to the hypothetical negotiation and “failed to isolate the portion of
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`the royalty rate attributable to such license.” (Dkt. 446 at 14.) These are plainly arguments
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`about methodology that Defendants have waived. (See Dkt. 468.) Nor do Defendants address
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`the substantial evidence supporting damages, including the testimony of Ms. Distler, who
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`analyzed comparable license agreements, determined which were the most relevant, made
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`adjustments to determine the appropriate royalty for the ’039 patent, and presented those
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`opinions to the jury. (Trial Tr. (Day 4) at 155:24–156:7; 157:21–163:10; 164:23–172:25.)
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`F.
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`The Jury’s Willfulness Determination Should Stand
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`Defendants’ reply argues only that Seagen’s arguments fail for the same reasons
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`explained in its other briefs regarding infringement and damages. Defendants make no effort to
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`satisfy the standard for a motion for new trial. Defendants also do not address Seagen’s
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`argument that the PTAB’s post complaint institution decision (which it later reversed) cannot
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`provide DSC with a subjective belief in non-infringement. And in any event, the parties agreed
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`that evidence of the PTAB proceedings should be excluded from trial. (Dkt. 347 at 4.) Having
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`waived reliance on PTAB proceedings, Defendants cannot resurrect them now.
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`G.
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`The Verdict Is Sound
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`After two rounds of briefing, Defendants still do not explain how the use of the term
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`“copied” or “duplicated” led the jury to be carried away with passion and prejudice and
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`constitutes reversable prejudice. Defendants’ own actions during trial suggest otherwise.
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`Seagen’s counsel and its witness used this term eight times without objection from Defendants.
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`(Trial Tr. (Day 4) at 108:15-110:25.) Regardless of the motion in limine, it was not so
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`prejudicial that Defendants thought it necessary to object immediately. (Id.)
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`Defendants likewise do not explain how a single isolated reference to “big Japanese
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`pharma companies” rises to the extreme level of its cited authority. (Dkt. 473 at 5.) Defendants
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`argue that Dr. Gormley’s earlier use of “large pharma companies” was not the same because it
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`was referring to “other companies”—yet Defendants ignore that one of these other companies
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`was intervenor-defendant AstraZeneca. (Dkt. 473 at 5; Trial Tr. (Day 2) at 187:4–188:9.)
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`III. CONCLUSION
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`Defendants’ motion for a new trial should be denied.
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`Case 2:20-cv-00337-JRG Document 476 Filed 10/21/22 Page 7 of 8 PageID #: 21251
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`Dated: October 21, 2022
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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
`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
`Attorneys for Plaintiff Seagen Inc.
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`Case 2:20-cv-00337-JRG Document 476 Filed 10/21/22 Page 8 of 8 PageID #: 21252
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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 21st day of October 2022.
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`/s/ Melissa R. Smith
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