Case 2:20-cv-00337-JRG Document 486 Filed 11/10/22 Page 1 of 15 PageID #: 21381
`
`
`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`SEAGEN INC.,
`
`v.
`
`Civil Action No. 2:20-CV-00337-JRG
`
`Plaintiff,
`
`
`
`
`
`DAIICHI SANKYO CO., LTD.,
`
`Defendant,
`
`ASTRAZENECA PHARMACEUTICALS LP,
`and ASTRAZENECA UK LTD,
`
`Intervenor-Defendants.
`
`SEAGEN’S SUR-REPLY TO DEFENDANTS’ 50(b) MOTION
`FOR RENEWED JUDGMENT AS A MATTER OF LAW AS TO
`INFRINGEMENT AND DAMAGES
`
` SF-4950521
`
`

`

`Case 2:20-cv-00337-JRG Document 486 Filed 11/10/22 Page 2 of 15 PageID #: 21382
`
`
`TABLE OF CONTENTS
`
`
`PAGE
`
`
`I.
`II.
`
`III.
`
`B.
`
`C.
`
`Introduction ........................................................................................................................ 1
`Argument ........................................................................................................................... 1
`A.
`Substantial Evidence Supports the Jury’s Finding That Enhertu Meets All
`Limitations of the Asserted Claims........................................................................ 1
`Substantial Evidence Supports the Jury’s Finding That DSC Is a Direct
`Infringer ................................................................................................................. 3
`Substantial Evidence Supports the Jury’s Finding That DSC Induced
`Infringement by DSI .............................................................................................. 4
`Substantial Evidence Supports the Jury’s Finding That DSC Is a Willful
`Infringer ................................................................................................................. 6
`Substantial Evidence Supports the Jury’s Damages Award .................................. 7
`1.
`Defendants’ Motion Is an Improper and Untimely Daubert
`Challenge ................................................................................................... 7
`The Agreements Provide Sufficient Evidence for the Jury’s Award ......... 9
`2.
`Conclusion ....................................................................................................................... 10
`
`D.
`
`E.
`
`
` SF-4950521
`
`i
`
`
`
`

`

`Case 2:20-cv-00337-JRG Document 486 Filed 11/10/22 Page 3 of 15 PageID #: 21383
`
`
`TABLE OF AUTHORITIES
`
`
`PAGE(S)
`
`
`Cases
`
`Bio-Rad Lab’ys, Inc. v. 10X Genomics Inc.,
`967 F.3d 1353 (Fed. Cir. 2020)..................................................................................................8
`
`KAIST IP US LLC v. Samsung Elecs. Co.,
`439 F. Supp. 3d 860 (E.D. Tex. 2020) .......................................................................................8
`
`MEMC Elec. Materials, Inc. v. Mitsubishi Materials Silicon Corp.,
`420 F.3d 1369 (Fed. Cir. 2005)..............................................................................................4, 5
`
`RightQuestion, LLC v. Samsung Elecs. Co.,
`C.A. No. 2:21-CV-00238-JRG, 2022 WL 507487 (E.D. Tex. Feb. 18, 2022) ..........................5
`
`TGIP, Inc. v. AT&T Corp.,
`527 F. Supp. 2d 561 (E.D. Tex. 2007) .......................................................................................3
`
`Virnetx, Inc. v. Cisco Sys., Inc.,
`767 F.3d 1308 (Fed. Cir. 2014)..................................................................................................9
`
`Warsaw Orthopedic, Inc. v. NuVasive, Inc.,
`824 F.3d 1344 (Fed. Cir. 2016)..................................................................................................5
`
`Zenith Labs., Inc. v. Bristol-Myers Squibb Co.,
`19 F.3d 1418 (Fed. Cir. 1994)................................................................................................2, 3
`
`
`
`
`
`ii
`
`
`
`

`

`Case 2:20-cv-00337-JRG Document 486 Filed 11/10/22 Page 4 of 15 PageID #: 21384
`
`
`I.
`
`INTRODUCTION
`
`Defendants’ reply makes clear that the Court should deny their motion. Despite bearing
`
`the burden to demonstrate that no reasonable jury could find in Seagen’s favor, Defendants did
`
`not address much of the evidence Seagen cited in opposition. Defendants did not even mention
`
`Dr. Bertozzi, let alone attempt to address her testimony that DSC’s own representations show
`
`that Enhertu meets every limitation of the asserted claims. Rather, Defendants contend that
`
`Dr. Lambert’s testimony must be accepted, and that his testimony alone requires judgment in its
`
`favor. But they do not explain why a reasonable jury could not reject Dr. Lambert’s testimony,
`
`especially in light of the conflict between his testimony and the documentary evidence.
`
`Defendants also fail to address the myriad evidence of DSC’s exceptional behavior
`
`during the parties’ collaboration that led to DSC’s infringement. As to damages, Defendants
`
`again ignore Ms. Distler’s testimony accounting for the differences between the hypothetical
`
`negotiation and the comparable licenses, and instead advance now-waived methodological
`
`challenges.
`
`II.
`
`ARGUMENT
`
`A.
`
`Substantial Evidence Supports the Jury’s Finding That Enhertu Meets All
`Limitations of the Asserted Claims
`
`Defendants’ non-infringement arguments are untethered from the standard for JMOL.
`
`Defendants disregard all of the documentary evidence that Seagen and Dr. Bertozzi presented to
`
`the jury as “inapposite” and having “different meaning than the claim limitations of its patent.”
`
`(Dkt. 472 at 2.) But Defendants cannot show that the documents have a different meaning as a
`
`matter of law.
`
`Dr. Bertozzi explained how DSC’s representations to the FDA, the scientific community,
`
`and investors demonstrate that Enhertu is intracellularly cleaved to release the drug moiety,
`
`
` SF-4950521
`
`1
`
`
`
`

`

`Case 2:20-cv-00337-JRG Document 486 Filed 11/10/22 Page 5 of 15 PageID #: 21385
`
`
`DXd. (Trial Tr. (Day 2) at 76:7–77:17, 79:7–80:3; Dkt. 468 at 3–4.) Dr. Bertozzi also presented
`
`DSC’s scientific publications offering experimental assays that show Enhertu’s intracellular
`
`cleavage mechanism. (Trial Tr. (Day 2) at 75:08–77:17; PX-161 at 18; PX-168 at 6.)
`
`Defendants do not grapple with Dr. Bertozzi’s testimony, and even they acknowledge that the
`
`“FDA regulatory documents shown at the trial state that Enhertu® undergoes ‘intracellular linker
`
`cleavage.’” (Dkt. 472 at 2.) Defendants again offer no reason why DSC’s statements must
`
`necessarily be interpreted in their favor.
`
`Defendants’ argument that the documents do not mean the “drug moiety is intracellularly
`
`cleaved in a patient” as that claim limitation was construed by the Court again ignores
`
`Dr. Bertozzi’s testimony, which in fact hewed to the Court’s construction. (Id.) The Court
`
`construed “intracellularly cleaved” to mean “a metabolic process or reaction inside a cell on an
`
`antibody drug conjugate (ADC) whereby the covalent attachment, e.g., the linker, between the
`
`drug moiety (D) and the antibody (Ab) is broken, resulting in the free drug dissociated from the
`
`antibody inside the cell.” (Dkt. 155 at 41–42.) Dr. Bertozzi explained that “Enhertu[] was
`
`designed to undergo intracellular cleavage . . . by using a peptide moiety that would be cut by
`
`proteases, and those proteases are inside the cell.” (Trial Tr. (Day 2) at 75:22–76:1.)
`
`Dr. Bertozzi showed that the result of this cleavage, as shown by DSC’s own documents, is the
`
`release of free drug—DXd—within the cell. (Id. at 75:8–76:3.) The Court’s construction
`
`requires nothing more.
`
`Defendants’ argument that Seagen “acknowledges that actual experimental evidence is
`
`required for it to meet its burden” has no support. (Dkt. 472 at 2.) Seagen never acknowledged
`
`such a requirement, and neither does any case law. Defendants’ only authority—Zenith—does
`
`not so hold. Zenith Labs., Inc. v. Bristol-Myers Squibb Co., 19 F.3d 1418 (Fed. Cir. 1994). In
`
`
` SF-4950521
`
`2
`
`
`
`

`

`Case 2:20-cv-00337-JRG Document 486 Filed 11/10/22 Page 6 of 15 PageID #: 21386
`
`
`Zenith, the court found error where the patentee’s expert compared the accused compound with a
`
`sample of the purportedly patented compound, not the claims of the patent itself. Id. at 1424.
`
`Zenith did not hold that there must be experimental evidence to sustain a finding of infringement.
`
`Here, Dr. Bertozzi properly analyzed DSC’s representations against the claims of the
`
`’039 patent, not against a commercial embodiment. (Trial Tr. (Day 2) at 75:08–77:17; PX-161 at
`
`18; PX-168 at 6.) Defendants fault Seagen for “ignor[ing] Dr. Lambert’s testimony” that even
`
`DSC does not know whether the drug moiety is intracellularly cleaved in a patient. (Dkt. 472 at
`
`3.) But Dr. Lambert admitted that it is “widely understood” that ADCs undergo intracellular
`
`cleavage to release a free drug. (Trial Tr. (Day 3) at 212:20–25.) Regardless, the jury was free
`
`to disregard Dr. Lambert’s testimony, and it may be disregarded at JMOL. TGIP, Inc. v. AT&T
`
`Corp., 527 F. Supp. 2d 561, 569 (E.D. Tex. 2007).
`
`Defendants do not address DSC’s own public statements that identify the released drug
`
`moiety as DXd, or Dr. Naito’s testimony that “[a]fter [Enhertu] is broken down inside of the cell,
`
`DXd is released” beyond merely asserting that they were “out-of-context.” (Trial Tr. (Day 3) at
`
`14:1–4, 16:12–19; Dkt. 472 at 4.) Such an assertion falls far short of showing why JMOL must
`
`be rendered in Defendants’ favor.
`
`Faced with a mountain of documentary and testimonial evidence that Enhertu meets
`
`every limitation of the asserted claims, Defendants’ only argument is a factual one that the jury
`
`resolved in Seagen’s favor. After two rounds of briefing, Defendants have failed to offer any
`
`justification to overturn that finding as a matter of law.
`
`B.
`
`Substantial Evidence Supports the Jury’s Finding That DSC Is a Direct
`Infringer
`
`Defendants repeat the arguments from their opening brief on direct infringement and do
`
`not address Seagen’s opposing evidence. Defendants again assert that DSI “controls the process
`
`
` SF-4950521
`
`3
`
`
`
`

`

`Case 2:20-cv-00337-JRG Document 486 Filed 11/10/22 Page 7 of 15 PageID #: 21387
`
`
`whereby Enhertu® ‘crosses the United States’ border.’” (Dkt. 472 at 4 (emphasis removed).)
`
`But Defendants do not grapple with the evidence Seagen cited in its opposition, including that
`
`DSC retains title to vials of Enhertu until after they enter the United States,
`
`
`
`
`
`Trial Tr. (Day 2) at 175:5–9; PX-359
`
`at 5, 8.)
`
`Defendants also emphasize the location of contracting of the agreements and assert
`
`without explanation that MEMC’s “plain applicability” somehow speaks for itself. (Dkt. 472 at
`
`4, n.5.) But as Seagen’s opposition explained, MEMC is not applicable where, as here, DSC
`
`sells the bulk vials directly to its domestic subsidiary, DSC retains title to the vials until after
`
`they entered the United States, and the contracts between DSC and DSI contemplate importation
`
`into, and sale within, the United States. (Dkt. 468 at 9 (citing MEMC Elec. Materials, Inc. v.
`
`Mitsubishi Materials Silicon Corp., 420 F.3d 1369, 1372 (Fed. Cir. 2005).) Defendants cite no
`
`case where location of contracting is a relevant consideration in such a scenario.
`
`Defendants similarly make no effort to address the substantial evidence that DSC is liable
`
`as a direct infringer based on its direction and control of the actions of its wholly-owned
`
`subsidiary. (Dkt. 468 at 9–10.) In reply, Defendants argue that DSC’s contracts “do not
`
`constitute the level of control needed for a principal-agent relationship” and that the “evidence”
`
`in Defendants’ motion shows that DSI operates independently. (Dkt. 472 at 5.) Defendants cite
`
`no such evidence in their motion or reply.
`
`C.
`
`Substantial Evidence Supports the Jury’s Finding That DSC Induced
`Infringement by DSI
`
`Without support or analysis, Defendants assert that the substantial evidence in the record
`
`“cannot provide sufficient evidentiary support” to prove that DSC took affirmative acts to bring
`
`
` SF-4950521
`
`4
`
`
`
`

`

`Case 2:20-cv-00337-JRG Document 486 Filed 11/10/22 Page 8 of 15 PageID #: 21388
`
`
`about DSI’s direct infringement. (Id.) Defendants do not, however, address the relevant
`
`,
`
`
`
`
`
` (PX-360 at 4; see also PX-403 at 1;
`
`PX-359.) These contracts, in combination with the actual sale of Enhertu to DSI, are more than
`
`sufficient for the jury to conclude that DSC was not only aware of the infringing activities in the
`
`United States; it also intended to encourage those activities. See MEMC, 420 F.3d at 1380. Nor
`
`can Defendants contest that DSC had actual knowledge of the ’039 patent as of the filing of the
`
`suit. See RightQuestion, LLC v. Samsung Elecs. Co., C.A. No. 2:21-CV-00238-JRG, 2022 WL
`
`507487, at *3 (E.D. Tex. Feb. 18, 2022) (“The Complaint—and the service thereof—therefore
`
`provides Samsung the requisite notice of the Asserted Patents to support a claim of induced
`
`infringement at least as of the time the Complaint was filed.”).
`
`Defendants assert that the “evidence presented at trial demonstrated that [DSC]
`
`reasonably believes that the sale of Enhertu® does not infringe the Asserted Claims” but again
`
`cite no evidence in support. (Dkt. 472 at 1.) As discussed above and in Seagen’s Motion for an
`
`Exceptional Case Finding (Dkt. 435), DSC’s noninfringement positions were weak and
`
`objectively unreasonable, particularly in light of its own public statements, publications, and
`
`submissions to regulators that all consistently describe Enhertu as intracellularly cleaving to
`
`release a free drug. (PX-157 at 7; PX-158; PX-160 at 5; PX-161 at 18; PX-163 at 4; PX-168 at
`
`6; PX-256 at 38; PX-978 at 6; PX-1049 at 14; PX-1137 at 7.) There is no basis to find, as a
`
`matter of law, that DSC could not have induced DSI’s direct infringement. See Warsaw
`
`Orthopedic, Inc. v. NuVasive, Inc., 824 F.3d 1344, 1348 (Fed. Cir. 2016) (“[W]e conclude that
`
`there was substantial evidence that [defendant’s] infringement position was objectively
`
`
` SF-4950521
`
`5
`
`
`
`

`

`Case 2:20-cv-00337-JRG Document 486 Filed 11/10/22 Page 9 of 15 PageID #: 21389
`
`
`unreasonable and that the jury, based on this evidence, could reasonably have concluded that
`
`[defendant] had knowledge (or was willfully blind to the fact) that it was infringing.”).
`
`D.
`
`Substantial Evidence Supports the Jury’s Finding That DSC Is a Willful
`Infringer
`
`Defendants do not contest that a finding of willfulness can be based on copying that
`
`occurred before issuance of the asserted patent. (Dkt. 472 at 6.) Seagen cited substantial
`
`evidence of DSC’s exceptional conduct, none of which Defendants challenge. (Dkt. 468 at 11–
`
`15.) DSC originally sought a partnership opportunity to jump-start its ADC research. (Dkt. 468
`
`at 12; Trial Tr. (Day 2) at 57:24–59:20; PX-587 at 2–3.) Once the collaboration began, Seagen
`
`supplied DSC scientists with a vast library of confidential information, including minute details
`
`on the conjugation process used in manufacturing, as well as “hands-on training for preparation
`
`of ADCs using Seagen’s cysteine-conjugated, protease-cleavable linker technology.” (Dkt. 468
`
`at 12; Trial Tr. (Day 2) at 57:24–59:20, 60:11–62:2, 89:14–90:10; see also PX-587 at 2–3; PX-
`
`184.) DSC scientists who participated in the collaboration then joined DSC’s internal ADC
`
`working group, yet all the while DSC had no internal firewall or any other policies in place to
`
`prevent misuse of the information. (Dkt. 468 at 12; Trial Tr. (Day 2) at 84:4–86:15, 88:9–89:13,
`
`214:19–215:02; PX-256.) Dr. Bertozzi explained how DSC’s incorporation of Seagen’s
`
`proprietary protocols in the manufacturing process for Enhertu ultimately led to infringement of
`
`the ’039 patent. (Dkt. 468 at 12; Trial Tr. (Day 2) at 87:18–88:8.) She also explained how DSC
`
`scientists copied every parameter in Seagen’s confidential batch record—from the order of
`
`operations to the reagents to the reaction conditions and times. (Dkt. 468 at 12–13; Trial Tr.
`
`(Day 4) at 107:18–111:25, 113:6–114:17.) Defendants have nothing probative to say about this
`
`misconduct.
`
`
` SF-4950521
`
`6
`
`
`
`

`

`Case 2:20-cv-00337-JRG Document 486 Filed 11/10/22 Page 10 of 15 PageID #: 21390
`
`
`Defendants argue that because the ’039 patent does not claim the misappropriated
`
`conjugation methods, there can be no willful infringement. (Dkt. 472 at 6–7.) But Defendants
`
`have no response to Dr. Bertozzi’s testimony that it is a direct result of DSC’s use of these
`
`conjugation methods that DSC arrived at a linker structure that infringes the ’039 patent: a
`
`cysteine conjugated ADC with a maleimidocaproyl (mc) stretcher unit attaching the linker to the
`
`antibody. (Dkt. 468 at 13; Trial Tr. (Day 2) at 91:11–92:7.) Defendants likewise overstate the
`
`outcome of the arbitration, which said nothing about whether this misconduct occurred. The
`
`arbitrator’s decision turned instead on the interpretation of the collaboration agreement between
`
`Seagen and DSC and DSC’s statute of limitation defense. (Dkt. 450-1; Dkt. 450-2.) He made no
`
`findings about whether DSC misused Seagen’s information.
`
`DSC’s post-suit conduct also supports a finding of willful infringement. Defendants have
`
`no excuse other than the bare assertion that they purportedly “had good faith defenses.” As
`
`explained above and in Seagen’s Motion for Exceptional Case Finding, those defenses were
`
`meritless. And after two rounds of briefing, Defendants still have not cited any authority to
`
`support their argument that Seagen’s decision not to pursue an injunction bars a finding of
`
`willful infringement. Instead, Defendants attempt to shift the burden to Seagen, but the burden
`
`to show they are entitled to JMOL remains with Defendants—and they have failed to meet it.
`
`E.
`
`Substantial Evidence Supports the Jury’s Damages Award
`
`1.
`
`Defendants’ Motion Is an Improper and Untimely Daubert Challenge
`
`Defendants’ challenge to Ms. Distler’s testimony is directed to issues that should have
`
`been resolved during Daubert practice. Defendants concede that where a challenge is “solely to
`
`an expert’s methodology, or admissibility of a particular agreement as a comparable license, the
`
`proper vehicle is a motion to exclude under Rule 702.” (Dkt. 472 at 8.) Yet many of
`
`Defendants’ challenges to Ms. Distler’s testimony relate solely to her methodology. As to the
`
`
` SF-4950521
`
`7
`
`
`
`

`

`Case 2:20-cv-00337-JRG Document 486 Filed 11/10/22 Page 11 of 15 PageID #: 21391
`
`
`selection of agreements, Defendants argue that Ms. Distler “cherry-picked” license agreements.
`
`(Dkt. 445 at 19 (“Ms. Distler’s testimony was legally flawed because it was based almost entirely
`
`upon her analysis of licensing agreements that are cherry picked and are also not sufficiently
`
`comparable to the hypothetical license at issue for Seagen’s ’039 patent.”) (emphasis added).)
`
`As to Ms. Distler’s analysis of the license agreements she selected, Defendants argue that
`
`Ms. Distler “ignored” the differences between those licenses and the hypothetical negotiation.
`
`(Mot. at 20.) These criticisms are plainly directed to Ms. Distler’s methodology. See KAIST IP
`
`US LLC v. Samsung Elecs. Co., 439 F. Supp. 3d 860, 877 (E.D. Tex. 2020) (“Defendants’
`
`criticism of the products Dr. Kuhn claimed were representative in her analysis is essentially a
`
`late-breaking, and thus waived, Daubert challenge.”). As to the
`
`
`
`specifically, Defendants challenge Ms. Distler’s calculation of the derived royalty rate and her
`
`supposed failure to account for certain value contained within the agreement (though, as
`
`explained below, she did). (Dkt. 468 at 9.) This too is directed to the methodology underlying
`
`Ms. Distler’s analysis, not the substantial evidentiary value the
`
` provides
`
`given its comparability to the hypothetical negotiation.
`
`Defendants’ cited authority does not help them. In Bio-Rad, the infringer did move under
`
`Daubert to exclude the patentee’s damages expert, but the district court denied the motion,
`
`finding the licenses had a “baseline comparability.” Bio-Rad Lab’ys, Inc. v. 10X Genomics Inc.,
`
`967 F.3d 1353, 1374 (Fed. Cir. 2020). The Federal Circuit affirmed, holding that any factual
`
`discrepancies between the licenses and the hypothetical negotiation were best resolved by the
`
`jury. Id. at 1373–74. Here, Defendants did not move to exclude Ms. Distler’s opinion. They
`
`have thus waived any challenge to Ms. Distler’s methodology, including the selection of the
`
`comparable agreements and the analysis underlying each agreement. To the extent that fact
`
`
` SF-4950521
`
`8
`
`
`
`

`

`Case 2:20-cv-00337-JRG Document 486 Filed 11/10/22 Page 12 of 15 PageID #: 21392
`
`
`issues remain, the jury resolved them in Seagen’s favor.
`
`2.
`
`The Agreements Provide Sufficient Evidence for the Jury’s Award
`
`As Seagen’s opposition explained, the Federal Circuit has never required “identity of
`
`circumstances” from comparable licenses, recognizing that “any reasonable royalty analysis
`
`necessarily involves an element of approximation and uncertainty.” Virnetx, Inc. v. Cisco Sys.,
`
`Inc., 767 F.3d 1308, 1330 (Fed. Cir. 2014) (quotation omitted). Instead, the Federal Circuit
`
`requires that consideration of past licenses “must account for differences in the technologies and
`
`economic circumstances of the contracting parties.” Id. Defendants again fail to address
`
`Ms. Distler’s testimony that accounts for the differences.
`
`. Defendants argue that the
`
` “does not have
`
`an implied 8% royalty.” (Dkt. 472 at 9 (emphasis removed).) Seagen has never so argued. Nor
`
`is it required that all agreements informing the hypothetical negotiation have the same royalty
`
`rate that the jury adopts. Defendants again ignore Ms. Distler’s testimony explaining how the
`
` royalty rates inform the hypothetical negotiation. Contrary to
`
`Defendants’ assertion, Ms. Distler did explain to the jury how the agreement was different from
`
`the hypothetical negotiation, including
`
`
`
`. (Trial Tr. (Day 4) at 156:8–
`
`10, 157:21–161:1.) Most critically, Defendants ignore that the
`
` was
`
`entered into in
`
`—years before Seagen’s ADC technology was proven through its first
`
`successful ADC, Adcetris, in 2011. (Id. at 153:25–154:9, 158:3–7.)
`
`. Defendants do not contest much of why the
`
` informs the hypothetical negotiation, including that it involved
`
`
` SF-4950521
`
`9
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 2:20-cv-00337-JRG Document 486 Filed 11/10/22 Page 13 of 15 PageID #: 21393
`
`
`. (See Trial Tr. (Day 4) at
`
`165:15–166:4.) Defendants argue that the
`
` that Ms. Distler derived from the
`
` is “inapplicable,” but again ignore Ms. Distler’s testimony about how she
`
`was able to isolate the value of
`
` that
`
`—like DSC in the
`
`hypothetical negotiation—would need for
`
`. (Id. at
`
`165:15–172:16.) Further, contrary to Defendants’ argument, Ms. Distler did explain that the
`
`terms of the
`
`, including
`
`
`
`. (Id. at
`
`219:23–220:14, 220:25–221:10, 222:10–223:6.)
`
` &
`
`Agreements. Defendants argue that the
`
` and
`
`
`
`Agreements cannot provide substantial evidence for the jury’s award because they are different
`
`from the hypothetical negotiation. (Dkt. 472 at 10.) This is, again, not the standard for
`
`comparability. The
`
` illustrates the royalty rate increases that Seagen realized
`
`from its licensing as its technology advanced, as well as the attention Seagen was receiving from
`
`potential collaborators. (Trial Tr. (Day 4) at 163:11–164:18.) The
`
` Agreement shows
`
`, which also would inform the structure of a
`
`hypothetical license for Enhertu. (Id. at 177:10–178:10.)
`
`Defendants also argue that Ms. Distler ignored other license agreements, but again fail to
`
`identify licenses she should have considered and how those licenses were more relevant.
`
`III. CONCLUSION
`
`Defendants have not shown that they are entitled to judgment as a matter of law. In
`
`reply, they fail to confront Seagen’s substantial showing and instead cite only the evidence they
`
`view as most favorable to their positions. They cannot meet their burden by avoiding the record
`
`evidence as a whole. Their motion should be denied.
`
`
` SF-4950521
`
`10
`
`
`
`

`

`Case 2:20-cv-00337-JRG Document 486 Filed 11/10/22 Page 14 of 15 PageID #: 21394
`
`
`Dated: October 21, 2022
`
`
`
`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
`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.
`
`
`
`
`
`
` SF-4950521
`
`11
`
`
`
`

`

`Case 2:20-cv-00337-JRG Document 486 Filed 11/10/22 Page 15 of 15 PageID #: 21395
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that counsel of record who are deemed to have
`
`consented to electronic services are being served with a copy of this document via the Court’s
`
`CM/ECF system per Local Rule CV-5(a)(3) on this the 21st day of October 2022.
`
`
`
`
`
`/s/ Melissa R. Smith
`
`
`
`
`
`
`
`
`
`
` SF-4950521
`
`12
`
`
`
`
`
`
`
`
`
`