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Amarin Pharma Inc. v. West-Ward Pharmaceuticals Corp

United States District Court, D. Nevada

January 4, 2018

AMARIN PHARMA, INC. and AMARIN PHARMACEUTICALS IRELAND LIMITED, Plaintiffs,
v.
WEST-WARD PHARMACEUTICALS CORP., et. al., Defendants.

          Nicholas J. Santoro, Jason D. Smith, SANTORO WHITMIRE, LTD. Christopher N. Sipes (admitted pro hac vice), Einar Stole (admitted pro hac vice) Michael N. Kennedy (admitted pro hac vice), Megan P. Keane (admitted pro hac vice) COVINGTON & BURLING LLP Attorneys for Plaintiffs Amarin Pharma, Inc. and Amarin Pharmaceuticals Ireland Limited

          Laxalt & Nomura, Ltd. Wayne A. Shaffer Locke Lord LLP Alan B. Clement, Myoka Kim Goodin, Nina Vachhani, Jennifer Coronel Attorneys for Defendants West-Ward Pharmaceuticals Corp. and West-Ward Pharmaceuticals Limited International

          Brownstein Hyatt Farber Schreck, LLP Michael D. Rounds, Ryan James Cudnik Budd Larner, P.C. Constance S. Huttner Caroline Sun Beth Finkelstein Attorneys for Defendants Dr. Reddy's Laboratories, Inc. and Dr. Reddy's Laboratories, Ltd.

          Dickinson Wright PLLC John P. Desmond Brian R. Irvine Sterne, Kessler, Goldstein & Fox P.L.L.C. J.C. Rozendaal Michael E. Joffre Chandrika Vira Attorneys for Defendant Teva Pharmaceuticals USA, Inc.

          STIPULATION AND ORDER TO EXTEND TIME FOR PLAINTIFFS TO FILE THEIR REPLY CLAIM CONSTRUCTION BRIEF (FIRST REQUEST)

         IT IS HEREBY STIPULATED and agreed by and between Plaintiffs Amarin Pharma, Inc. and Amarin Pharmaceuticals Ireland Limited (collectively, “Plaintiffs” or “Amarin”) and Defendants WestWard Pharmaceuticals Corp., West-Ward Pharmaceuticals International Limited, Dr. Reddy's Laboratories, Inc., Dr. Reddy's Laboratories, Ltd., and Teva Pharmaceuticals USA, Inc. (collectively, “Defendants”), by and through their respective undersigned counsel, that the deadline by which Amarin must file their Reply Claim Construction Brief be extended to February 2, 2018. Amarin's current deadline is January 25, 2018. (ECF No. 60.) This stipulation is therefore filed more than 21 days in advance of the deadline sought to be extended, as required by Local Rule 26-4. This is the parties' first request to extend the deadline for Amarin's Reply Claim Construction Brief.

         At this point, the parties have complied with the previous deadlines in the Discovery Plan and Scheduling Order. (See ECF No. 60 at 1-2; ECF No. 88.) The parties are currently engaged in briefing the claim construction issues in advance of the April 24, 2018 claim construction hearing. (See ECF No. 60, ECF No. 103.) Amarin submitted its Opening Claim Construction Brief on November 1, 2017 (ECF No. 89) with the supporting Declaration of Dr. Michael Miller, M.D. (ECF No. 89-1). On December 12, 2017, Defendants submitted their Responsive Claim Construction Brief (ECF No. 102) with the supporting Declaration of Ronald H. Wharton, M.D. (ECF No. 102-1).

         The parties have long contemplated that the claim construction declarants would be deposed during the claim construction stages of this case. For example, in the Proposed Discovery Plan Scheduling Order, Amarin explained that “[t]hese deposition are necessary to ensure that the parties can adequately respond to any testimony that is submitted in support of the parties' claim construction positions.” (ECF No. 55 at 7.) However, Defendants' claim construction declarant, Dr. Wharton, is not available for his deposition until January 24, 2018-the day before the current deadline for Amarin's Reply Claim Construction Brief. Accordingly, good cause exists for the requested extension. Without the requested extension, Amarin will be deprived of any meaningful opportunity to address the testimony that Dr. Wharton will give at his January 24, 2018 deposition before filing its Reply Brief due the next day. The requested extension provides adequate time to obtain the final transcript from the deposition, review the transcript, and revise the brief in accordance with the deposition testimony. The prejudice to Amarin from the current schedule is particularly acute because Wharton opines that many of Amarin's patent claims are invalid. (See Wharton Decl. ¶¶ 64-73, ECF No. 102-1.) Thus, without the extension, Amarin would be essentially precluded from addressing Dr. Wharton's claim construction opinions in its Reply Brief, but also unable to fully respond to Dr. Wharton's opinions that many of Amarin's patent claims should be found invalid at this very early stage of the case. See Phillips v. AWH Corp., 415 F.3d 1303, 1318 (Fed. Cir. 2005) (“[Extrinsic evidence consisting of expert reports and testimony . . . can suffer from bias . . . . The effect of that bias can be exacerbated . . . if the expert's opinion is offered in a form that is not subject to cross-examination.”).

         The parties further stipulate and agree that the requested extension will not be prejudicial to any party. The additional eight days will not impede on any of the parties' abilities to prepare for the April 24, 2018 claim construction hearing Indeed, even with the requested extension to February 2, 2018, the parties and the Court will be in possession of all claim construction briefing for well over two months before the hearing In addition, Amarin agrees to make its claim construction declarant, Dr. Miller, available for deposition between February 9, 2018 and March 31, 2018, as requested by Defendants. Moreover, the requested extension will not affect any other currently scheduled case deadline. (ECF No. 60.)

         Finally, there have been no previous extensions of time with respect to the deadline for Amarin's Reply Claim Construction Brief. Accordingly, the parties stipulate that Amarin shall have up to and including February 2, 2018, to file its Reply Claim Construction Brief.

         Amarin shall have up to and including February 2, 2018, to file its Reply Claim Construction Brief.

         IT ...


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