Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-00939-GMS

Document 35

Filed 09/02/2005

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MORRIS, NICHOLS, ARSHT & TUNNELL
1201 N O R T H M A R K E T S T R E E T P.O. B O X 1347 W I L M I N GT O N , D E L A WA R E 19899-1347 302 658 9200 302 658 3989 F A X
M A R Y B. G R A H A M (302) 575-7287 [email protected]

September 2, 2005

VIA E-FILING AND HAND DELIVERY The Honorable Joseph J. Farnan, Jr. United States District Court for the District of Delaware 844 King Street Wilmington, DE 19801 RE: Merck & Co., Inc. v. Teva Pharmaceuticals USA, Inc. C.A. No. 04-939-JJF

Dear Judge Farnan: By Order of June 14, 2005 (D.I. 29), the Court has scheduled a Markman hearing in this ANDA case for October 20, 2005, with briefing to be completed ten days in advance, and a pretrial conference for May 4, 2006 (the trial date has not yet been set). Fact discovery in the case is set to close on October 17, 2005 and expert discovery on January 20, 2006 (D.I. 23). From the parties' perspective, Markman proceedings this September and October will be premature, given that fact discovery will still be underway and expert discovery will not have begun. This is not a case where the parties believe that claim construction in advance of expert discovery is important, particularly in that this is a non-jury case. At the same time, the parties submit that rescheduling such a hearing for early next spring may be more efficient for the Court in that, by that time, expert discovery will have been completed and the parties will be in a better position to refine and reduce (or possibly even eliminate) claim construction issues. Accordingly, the parties jointly ask the Court to amend the schedule to provide for the submission of Markman briefs after expert discovery. The parties suggest that opening Markman briefs be served on February 20, 2006 and rebuttal Markman briefs on March 20, 2006, with a Markman hearing scheduled at the Court's convenience thereafter (a form of proposed order is attached).

Case 1:04-cv-00939-GMS The Honorable Joseph J. Farnan, Jr. September 2, 2005 Page 2

Document 35

Filed 09/02/2005

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Counsel are available to answer any questions the Court may have.

Respectfully,

/s/ Mary B. Graham
Mary B. Graham MBG/dam cc: Clerk of Court (By Hand) Adam W. Poff, Esquire (By Facsimile) James Galbraith, Esquire (By Facsimile) John F. Lynch, Esquire (By Facsimile)

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