Case 2:20-cv-00337-JRG Document 481 Filed 10/31/22 Page 1 of 9 PageID #: 21307
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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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`Plaintiff,
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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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`DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION FOR NEW TRIAL
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`Case 2:20-cv-00337-JRG Document 481 Filed 10/31/22 Page 2 of 9 PageID #: 21308
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`A.
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`Improperly Admitted Evidence1
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`Improper Evidence of “Copying” and Collaboration
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`1.
`Seagen misleadingly argues “the parties agreed on” admission of evidence of purported
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`“copying” and prior collaboration. (Dkt. 466 (“Opp.”) at 2, 4.) In reality, Defendants objected to
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`such use, and made plain to the Court that their rebuttal case obliged Defendants to present
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`evidence of Daiichi Sankyo Japan’s creation of Enhertu®. Indeed, Defendants made clear on the
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`record that they proceeded in this fashion while reserving and not waiving all rights concerning
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`the evidence. (Trial Tr. (Day 1) at 128:12-129:1-7.) Seagen also places undue emphasis on denied
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`MIL Nos. 2 and 4, but most, if not all, of the cited evidence in question, (see Dkt. 446 (“Mot.”) at
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`2-4), was encompassed by granted MIL Nos. 1 and 3. Further, Seagen’s argument that the Court
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`did not definitively rule on MIL Nos. 2 and 4 is incorrect, because Seagen presented most of the
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`evidence in question through its expert. The Court ruled definitively on the MILs as to experts (as
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`Seagen itself emphasizes, (Opp. at 2)). When the Court so rules definitively with respect to an
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`evidentiary ruling, a party need not continue to renew the objection. See Fed. R. Evid. 103(b).2
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`Improper Evidence Outside the Priority Application
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`2.
`As explained in Defendants’ Motion, Seagen was improperly allowed to present evidence
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`outside the priority application through both fact witnesses and expert witnesses. (Mot. at 4-5.)
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`Seagen’s Opposition responds only as to expert witnesses, waiving any response to Defendants’
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`1 Seagen’s Opposition suggests that the Court may grant a new trial only if “justice requires.”
`Seagen is incorrect. “The court can grant a new trial based on its appraisal of the fairness of the
`trial and the reliability of the jury's verdict.” Metaswitch Networks Ltd. v. Genband US LLC,
`2:14-CV-00744-JRG, 2017 WL 3704760, at *2 (E.D. Tex. Aug. 28, 2017) (internal citation and
`quotation marks omitted).
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`2 See also United States v. Lara, 23 F.4th 459, 474 (5th Cir. 2022) (“[W]hen a party's pretrial
`evidentiary objection is denied, it would be futile for that party to continue making objections at
`trial.” (citation and internal quotations omitted)).
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`Case 2:20-cv-00337-JRG Document 481 Filed 10/31/22 Page 3 of 9 PageID #: 21309
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`argument as to the evidence admitted through fact witnesses in contravention of the MIL Nos. 6
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`and 7 rulings. (Opp. at 4.) As to experts, Seagen’s argument is that Defendants did not object
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`during the testimony in question at trial. (Id.) But the Court definitively ruled that MIL Nos. 6
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`and 7 were denied as to expert witnesses, leaving no room for re-raising the issue during trial, so
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`no objection was necessary under Fed. R. Evid. 103(b). (Pretrial Conf. Tr. (Vol 2) at 167:2-6.)
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`B.
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`Defective Jury Verdict
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`Seagen’s Disclaimer
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`1.
`Defendants are entitled to a new trial if Seagen’s disclaimer invalidated or altered the scope
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`of any of the Asserted Claims because a general verdict cannot rest on a legally defective claim.
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`See WesternGeco L.L.C. v. ION Geophysical Corp., 913 F.3d 1067, 1073 (Fed. Cir. 2019). Seagen
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`attempts to distinguish WesternGeco on its facts as a damages trial, (see Opp. at 8), but the rule
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`that a court must “set aside a general verdict if the jury was told it could rely on any of two or more
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`independent legal theories, one of which was defective,” applies to liability trials as well. i4i Ltd.
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`Partnership v. Microsoft Corp., 598 F.3d 831, 849 (Fed. Cir. 2010). Seagen does not contest that
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`if, as a result of disclaimer, the Asserted Claims are construed to be limited to G/F-only tetrapeptide
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`ADCs wherein the drug moiety is intracellularly cleaved from the antibody (not from an ADC
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`metabolite), then Defendants are entitled to a new trial and judgment. (See Opp. at 7-8.) Moreover,
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`invalidity would have to be redetermined under any new claim construction.
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`Generality of Invalidity Verdict Form
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`2.
`As to the argument that the generality of the invalidity verdict renders it defective, while
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`Seagen argues the Court provided clear instructions, (Opp. at 8), that is insufficient. The issue is
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`that the generality of the verdict makes it impossible to tell whether the jury actually determined
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`and applied the priority date and made a finding of non-anticipation consistent with that date.
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`Case 2:20-cv-00337-JRG Document 481 Filed 10/31/22 Page 4 of 9 PageID #: 21310
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`C.
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`Improper Jury Instructions
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`Contrary to Seagen’s claim that Defendants did not cite to Federal Circuit authority, (Opp.
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`at 9), the jury-instruction challenges Defendants raised were expressly supported by citation to
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`binding Federal Circuit precedent. (Mot. at 9, n.2-3, 10.) Seagen fails to address the specific
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`arguments in Defendants’ Motion. (Opp. at 9-12.) For example, Seagen identifies no instance
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`where the Court instructed the jury, as was required by law, that the specification itself must
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`demonstrate actual possession of the invention. (See Mot. at 9.) Likewise, Seagen fails to address
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`or attempt to contest Defendants’ argument that it was error for the Court, having permitted Seagen
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`to present enablement evidence beyond the specification, to then fail to instruct the jury that the
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`specification, and not the knowledge of a person of ordinary skill in the art, must supply the
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`novel aspects of the alleged invention for adequate enablement. (See id.) Further, Seagen
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`completely misses Defendants’ argument that while the Court suggested blazemarks must point to
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`examples of species within the genus, the law requires that blazemarks point to the genus itself
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`and must be apparent without hindsight knowledge of the invention. (See id. at 10.) Arming the
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`jury with inaccurate law on blazemarks is necessarily an outcome-determinative error. (Id.) As
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`to reasonable royalty, Seagen’s argument that the Court’s instruction was consistent with its prior
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`practice is of no moment given that the excluded instruction was derived from Federal Circuit
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`precedent (and was agreed upon by the parties), to which Seagen has no answer. (Id. at 11.)
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`D.
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`Improperly Excluded Evidence
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`Contrary to Seagen’s claims, (Opp. at 5), Defendants did argue that the improper exclusion
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`of evidence resulted in a prejudicial and harmful error. (See Mot. at 11-13 (referring to “key
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`evidence,” and repeatedly arguing “exclusion of this evidence was highly prejudicial and warrants
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`a new trial”).) Seagen fails to rebut Defendants’ showing of relevance and prejudice. (Opp. at 5-
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`7.) For example, Seagen fails to answer Defendants’ argument that while EPO standards are
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`Case 2:20-cv-00337-JRG Document 481 Filed 10/31/22 Page 5 of 9 PageID #: 21311
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`different, the EPO documents nevertheless are consistent with and reinforce Dr. Lambert’s
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`invalidity testimony. (Id. at 5.) Seagen also argues that Defendants rely on “an intentional
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`mischaracterization” of an email from Seagen’s CEO, yet never explain the supposed
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`mischaracterization. (Id. at 6.) Seagen attempts to dismiss the email by claiming those involved
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`are not infringement experts and Daiichi Sankyo Japan’s alleged copying “was largely revealed
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`through recent discovery,” (id.), but that is belied by Seagen’s repeated assertions that it wrote the
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`’039 patent claims specifically to try to ensnare Enhertu®. (Dkt. 452 at 4.) The email is probative
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`not only of Seagen’s state of mind but also the reasonableness of Daiichi Sankyo Japan’s belief
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`(like Seagen’s) that the accused product was not Seagen’s technology. (See Mot. at 12.) Seagen
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`also offers only conclusory assertions that the inventor testimony’s probative value was somehow
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`outweighed by potential prejudice, with no explanation of what legitimate prejudice to Seagen
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`could have resulted from its named inventors admitting they did not possess the invention at the
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`time of the purported claimed priority date. (Opp. at 7.) And Seagen’s argument concerning the
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`exclusion of Dr. Senter’s 30(b)(6) testimony ignores the fact that such testimony is admissible,
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`regardless of availability of live questioning, under Fed. R. Civ. P. 32(a)(2) and (a)(3). (Id.)
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`E.
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`The Jury’s Willfulness Verdict
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`Seagen’s Opposition refers to its opposition to Defendants’ motion for JMOL as to
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`infringement and damages (Dkt. 468). (Opp. at 13.) Seagen’s argument fails for the same reasons
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`explained in Defendants’ Reply in support of that motion. (See Dkt. 472 at 6-7.)
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`F.
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`The Jury’s Damages Award
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`Seagen’s Opposition on this issue also simply refers to arguments in its opposition to Dkt.
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`468. (Opp. at 12.) Seagen’s argument fails for the same reasons explained in Defendants’ Reply
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`in support of that motion. (See Dkt. 472 at 8-10.) Seagen also places undue emphasis on
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`Defendants not seeking to exclude Ms. Distler’s opinions, mischaracterizing Defendants’
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`Case 2:20-cv-00337-JRG Document 481 Filed 10/31/22 Page 6 of 9 PageID #: 21312
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`argument as one of inadmissibility. Seagen acts as if the absence of a prior motion to exclude
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`enshrines an expert’s opinion as verified fact and precludes any argument that the verdict was
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`against the great weight of the evidence, which is plainly incorrect.
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`G.
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`Verdict Reflecting Passion and Prejudice
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`Attempting to excuse its improper use of the terms “copying” and “duplicating,” Seagen
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`unabashedly mischaracterizes the record, claiming that the Court’s instruction to not use “copied”
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`came only after Seagen used it on the record. (Opp. at 14, n.3.) Not so. Prior to trial, the Court
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`granted MIL No. 5 as to “copying” or any variation thereof. (Mot. at 1.) Seagen nevertheless
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`used the word “copied” repeatedly, (see Trial Tr. (Day 4) at 108:15-110:25, 112:1-2), and then the
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`Court improperly permitted Seagen to continue using “duplicated” repeatedly instead, (see id. at
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`112:12-113:19, 114:5-9, ), despite the fact the latter is a synonym, i.e., a variation, of the former.3
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`Seagen offers little more than a hand wave at its improper reference to Daiichi Sankyo
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`Japan as “big Japanese pharma companies” in contravention of Agreed MIL No. 2. (Opp. at 15.)
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`Seagen also fails to address Defendants’ argument that its counsel’s withdrawal failed to “unring
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`the bell” and remedy the unfair prejudice from the statement. Nor does another witness referring
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`to other companies as large pharma companies remedy the unfair prejudice from Seagen casting
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`Daiichi Sankyo Japan in those terms. Also unsuccessful is Seagen’s argument that the damages
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`award was in the range Ms. Distler presented, because the jury did not indicate it adopted Ms.
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`Distler’s opinion (as opposed to a lower damages amount with an enhanced amount based on
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`passion and prejudice) and its award was excessive and beyond the range Dr. Meyer presented.
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`3 Seagen also refers to “the factual use of the word ‘copying,’” (Opp. at 15 (emphasis added)), and
`erroneously acts as if it is indisputable that Daiichi Sankyo Japan copied Seagen. The only fact-
`finder to evaluate and rule on the issue of copying, however, the arbitrator in Daiichi Sankyo Japan
`and Seagen’s separate arbitration, found that Enhertu® was neither Seagen’s technology nor an
`improvement that related to Seagen’s technology. (See Mot. at 14; Dkt. 447 at Exs. 6-7.)
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`Case 2:20-cv-00337-JRG Document 481 Filed 10/31/22 Page 7 of 9 PageID #: 21313
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`Dated: October 7, 2022
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`By: /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
`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 481 Filed 10/31/22 Page 8 of 9 PageID #: 21314
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`Dated: October 7, 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 481 Filed 10/31/22 Page 9 of 9 PageID #: 21315
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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 October 7,
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`2022.
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`/s/ Preston K. Ratliff II
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