Free Letter - District Court of Delaware - Delaware

Case 1 :08-cv-00166-SLR Document 19 Filed 08/26/2008 Page 1 of 2
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&..Corroon rrr j
1.313 North Market Street Philip A_ Rovnel. l
BOX yaxmcp
Wilmington, DE 19899-0951 (302) 984-6140 Direct Phone
302 984 6000 (302) 658-1192 Fax
[email protected]
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August 26, 2008
BY E-FILE A
The Honorable Sue L. Robinson
United States District Comt
U.S. Courthouse
844 King Street ‘
Wilmington, DE l980l
Re: Human Genome Sciences, Inc. v. Genentech, Inc.
C.A. No. 08-166-SLR
Dear Judge Robinson: -
We represent defendant, Genentech, inc., in this litigation, which is an action tiled
under 35 USC. § 146. This § 146 action is related to another § 146 action just dismissed by this 1
Court, Human Genome Sciences, Inc. v. Amgen, Inc., Case No. 07-780-SLR ("HGS/Amgen").
We write in light of this Court’s recent ruling in HGS/Amgen denying HGS’s Motion for 1
Reconsideration (HGS/Amgen D.i. 37). The Federal Circuit appeal in that action may be
reactivated, see id. at n. l, and that appeal has implications for appellate consolidation and
judicial efficiency.
Both § 146 actions involve the same HGS patent (U.S. Patent No. 6,872,568), a
common party (HGS), and »»~ most important — a common tmeshold issue: whether HGS failed to
exhaust its administrative remedies in the respective underlying interference proceedings before
the Board of Patent Appeals and interferences ofthe United States Patent and Trademark Office.
(Cf DI 10 [Genenteclfs pending Motion to Disrniss] with HGS/Amgen D.I. 27 & 28
[Memorandum and Order granting Amgen’s Motion to Dismiss].) Because a central threshold
issue in the two cases is the same, Genentech believes that were the Court to grant Genenteclfs
pending motion to dismiss (D.l. 9, l0), it would serve the interests of judicial economy for the
Federal Circuit to have the opportunity to consolidate the appeals in the two cases pursuant to
Rule 3(b)(2) ofthe Federal Rules of Appellate Procedure. ‘

Case 1 :08-cv—00166-SLR Document 19 Filed 08/26/2008 Page 2 of 2
The Honorable Sue L. Robinson
August 26, 2008
Page 2
We do not presume to predict the Court’s ruling on Genentech’s pending and
fully briefed Motion to Dismiss (D.I. 9, 10 [Genentech’s Motion to Dismiss]; D.I. 15 [HGS’s
Answering Brief]; and D,}. I7 [Genenteclfs Reply Briet]). Rather, we respectfully write only to
inquire whether there is a process by which the Court’s resolution of that pending motion could
be expedited, so that the Federal Circuit would have the opportunity to hear a consolidated
appeal should the Circuit so direct (and should this Court grant Genentech’s motion). We would
expect the parties to be prepared for oral argument at the Court’s instruction.
Respectfully,
/s/ Philip A. Rovner '
Philip A. Rovner
provner@;gottera11derson.com
PAR/n1es/ 879980 -
cc: Steven J. Baliek, Esq. ·-— By CM-ECF, Hand Delivery and E-mail
Richard L. Delsucia, Esq. -~ by E-mail

Case 1:08-cv-00166-SLR

Document 19

Filed 08/26/2008

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Case 1:08-cv-00166-SLR

Document 19

Filed 08/26/2008

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