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Takeda Pharmaceutical Co., Ltd. v. Twi Pharmaceuticals, Inc.

United States District Court, N.D. California, San Jose Division

December 10, 2014

TAKEDA PHARMACEUTICAL CO., LTD., TAKEDA PHARMACEUTICALS U.S.A., INC., AND TAKEDA PHARMACEUTICALS AMERICA, INC., Plaintiffs,
v.
TWI PHARMACEUTICALS, INC., Defendant.

Plaintiff's Attorney: Heather Takahashi.

Defendant's Attorney: Don J. Mizerk.

CASE MANAGEMENT ORDER

LUCY H. KOH, District Judge.

A case management conference was held on December 10, 2014. A further case management conference was set for March 19, 2015, at 1:30 p.m. The parties shall file their joint case management statement by March 12, 2015.

The Court hereby ORDERS Takeda to produce all TAP Pharmaceuticals inventor e-mails (with attachments) from 2000 to 2008 no later than December 23, 2014, and all TAP licensing documents no later than January 7, 2015. TWi will consult with Takeda regarding custodians for the licensing documents. Takeda will produce the documents to TWi on a rolling basis, beginning as soon as possible.

As a result, the Court will allow TWi to re-depose the following individuals:

• The six (total) inventors of the '158 and '187 Patents;
• The '158 and '187 Patent prosecutors (Mr. Yasger, Ms. Mueller, and Mr. Buonaiuto);
• TAP Pharmaceuticals CEO Watkins;
• Mr. Yasger (both as to licensing and as to patent prosecution);

• Mr. Frapaise; and

• Individuals associated with the 2006-2007 development of dissolution protocol for TAP's New Drug Application.

All depositions, except for the inventor who resides in New York City, shall be held in Chicago. The Court hereby ORDERS that Takeda shall bear the following expenses for any of the above depositions:

• Court reporter;
• Videographer; and
• TWi attorney travel expenses, including airfare and hotel, for deposition of the inventor residing in New York City (if necessary).

The Court adopts Judge Grewal's recommendation and allows Takeda to reassert claim 7 of the '187 Patent in exchange for dropping claim 8. See ECF No. 128. TWi stipulated that there are no corresponding changes to its invalidity contentions.

Upon further reflection, the Court allows Takeda to reassert claim 6 of the '187 Patent in light of TWi's filing of an amended ANDA. See ECF No. 124, Takeda's Second Case Narrowing Statement.

The following ELEVEN claims are now being asserted in the case:

• '158 Patent: claims 1, 2, 3, and 6
• '187 Patent: claims 1, 2, 5, 6, 7, 11, and 16

TWi stipulated that only the following THREE prior art references will be used at trial:

• Akiyama reference (three versions);
• Dietrich reference; and
• Offer for sale.

The parties agreed to meet and confer regarding Takeda's possible filing of a motion to strike in part TWi's expert report(s) as to anticipation by the Dietrich reference and enablement under section 112. If Takeda files the motion, the hearing date shall be March 19, 2015, at 1:30 p.m. The parties shall determine their own briefing schedule, with Takeda's reply due no later than March 5, 2015.

The Court amended the case schedule as follows:

Scheduled Event Date Parties Serve Rebuttal Expert Reports and December 22, 2014 Produce Related Documents/Materials Deadline for Takeda to Produce TAP Inventor E-mails December 23, 2014 Deadline for Takeda to Produce TAP Licensing Documents January 7, 2015 Parties Serve Reply Expert Reports January 9, 2015 Close Expert Discovery January 23, 2015 Deadline for Takeda to File and Serve a Narrowed List of February 1, 2015 Asserted Claims (max 7 claims) Last Day to File Dispositive Motions February 19, 2015 Last Day to File Reply Supporting Takeda's Motion to Strike March 5, 2015 (if necessary) Further CMC March 19, 2015, at 1:30 p.m. Hearing on Takeda's Motion to Strike (if necessary) March 19, 2015, at 1:30 p.m. Hearing on Dispositive Motions April 9, 2015, at 1:30 p.m. Deadline for Takeda to File and Serve a Narrowed List of April 16, 2015 Asserted Claims (max 5 claims) Final Pretrial Conference May 14, 2015, at 1:30 p.m. Bench Trial June 2, 2015, at 9:00 a.m. Length of Trial 7 days

IT IS SO ORDERED.


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