Free Motion for Issuance of Letters Rogatory - District Court of Delaware - Delaware

Case 1 :04-cv-00171-GIVIS Document 60 Filed 07/29/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OP DELAWARE
——--——-----——--—— -··-···»·· --------- ·-—··-·····-~·················-··-·····»····-··---··~·······-—·—X
GLAXO GROUP LIMITED,
rninarr, Q
: Civil Action No. 04—I7I—KAJ
v. :
TEVA PHARMACEUTICALS USA,
INC. and TEVA PHARMACEUTICAL :
INDUSTRIES LIMITED, :
Defendant.
.,.,.I......,, W ,...................................... Qi
UNOPPOSED MOTION FOR ISSUANCE OF LETTER OF REQUEST TO
THE CANADIAN JUDICIAL AUTHORITY OF QUEBEC, CANADA
TO: Mark D. Schuman, Esq. Iosy W. Ingersoll, Esq.
MERCHANT & GOULD YOUNG CONAWAY STARGATT
3200 IDS Center & TAYLOR
80 South Sth Street The Brandywine Building
Minneapolis, MN 55402 100 West Street, I'/th Floor
Wilmington, DIE l9899-039l
Pursuant to Federal Rule of Civil Procedure, Rule 28(‘o), Glaxo Group Limited
("Giaxo") requests that the Court issue the proposed Letter ot`Request attached hereto as
Exhibit I for testimony and documents of Morris Goodman, Chairman and Founder of
Pharmascience, Inc., ("Pharinascienee") and director of its subsidiary or division
PendoPharm, Inc., ("PendoPharm").
Upon infomation and belief, Giaxo asserts that PendoPharrn was created by the
merger of PangeoPharrna (Canada), Inc., (“Pangeo") and Pharrnascience’s Consumer
Products and Private Label Division. Ftrrthermore, Pangeo was the purchaser of the
Novopharni Limited (‘“Novopharm") (a vvhoiiy owned subsidiary of Teva Pharmaceuticai

Case 1:04-cv—00171-G|\/IS Document 60 Filed 07/29/2005 Page 2 of 4
Industries Limited) facility where the formulation, development, and testing of a
ranitidine hydrochloride oral solution was first performed. lt is also believed that Pangeo
may have continued work on the product for Novopharrn after its purchase of
Novophariifs facility.
Relying upon information provided by defendant Teva Pharmaceuticals USA, lnc.
("Teva"), Glaxo asserts that Pharmascience or l’endoPharin is in possession of records
documenting Novopharrifs ('l`eva”s corporate affiliate) and Pangeo”s efforts to develop
and test a ranitidine hydrochloride oral solution.
Glaxo has tiled this action against defendants alleging infringement of U.S. Patent
No. 5,068,249. Infringement in this case is based on the doctrine of equivalents. The
formulation, development and testing documents for the ranitidine hydrochloride oral
solution developed by Novopliarm or Pangeo are relevant to the issue of infringement
because it was these earlier formulations that led to the formulation currently proposed by
Teva in its Abbreviated New Drug Application now on file with the F ood and Drug
Administration. Furthermore, the sales and marketing data or forecasts Glaxo seeks are
relevant to the issue of validity of the patent.
Efforts to obtain these documents without judicial intervention have failed. (See
Letters attached to the Letter of Request as Ex. B and Ex. C).
Glaxo requests that the Court execute and certify two endorsed letter requests and
return them to counsel to be forwarded to Glaxo’s Canadian representative:
Brian R. Daley
Ogilvy Renault LLP
Suite 1100
l98l McGill College Avenue
Montreal, Quebec HBA 3Cl
Telephone: (514) 847-4764
408137 2

Case 1:04-cv—00171-Gl\/IS Document 60 Filed 07/29/2005 Page 3 of 4
Glaxo has conferred with eounsel for clefendants regarding the relief sought in this
motion, and Defendants will not oppose this motion.
Dated: July 29, 2005 /s/ Francis DiGi0vamzi
Francis DiGiovanni (#3189)
Connolly Bove Lodge & llutz, LLP
The Nemours Building
1007 North Orange Street
l’.O. Box 2207
Wilmington, DE 19899
Telephone: (302) 658-914}
Attorneys for Plaintiff Glaxo Group Limited
Of Counsel:
Brian 1*. Murphy
Jason A. Lief
Thonias 5. Puppa
Morgan Lewis & Bockius
101 Park Avenue
New York, New York 10178
Telephone: (212) 309-6000
408137 3

Case 1:04-cv—00171-G|\/IS Document 60 Filed 07/29/2005 Page 4 of 4
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
CERTIFICATE OF SERVICE
I, hereby certify that on the July 29, 2005, I electronically filed the foregoing
document with the Clerk ofthe Court using CM/ECF which will send notification of such
filing(s) to the following and l hereby certify that we have served. via Hand Delivery a
copy of said document to:
losy W, Ingersoll, Esq.
Young Conway Stargatt & Taylor
The Brandywine Building
1000 West Street, 17th Floor
P.O. Box 391
Wilmington, DE 19899
I hereby certify that on this same date, I have rnailed by United States Postal
Service, the docu1nent(s) to the following non-registered participant:
l\/lark D. Schuman, Esq.
l\/Ierhant & Grould LLC
3200 IDS Center
80 South 8th Street
Minneapolis, MN 55402
/s/ Francis DiGiovanni
Francis DiGiovanni (#3189)
CONNOLLY BOVE LODGE & HUTZ LLP
The Nemours Building
1007 N. Orange Street
Wilmington, DE 19801
(302) 658-9i41
[email protected]
Attorneys for Plaintiff Glaxo Group Limited.
4

Case 1:04-cv-00171-GMS

Document 60

Filed 07/29/2005

Page 1 of 4

Case 1:04-cv-00171-GMS

Document 60

Filed 07/29/2005

Page 2 of 4

Case 1:04-cv-00171-GMS

Document 60

Filed 07/29/2005

Page 3 of 4

Case 1:04-cv-00171-GMS

Document 60

Filed 07/29/2005

Page 4 of 4