Ares Trading SA

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Entered	Case	Description
08/28/24	Merck KGaA v. Hopewell Pharma Ventures Inc 1:22-CV-01365 ( D. DE )	ORAL ORDER: The Court has reviewed the Apotex Defendants' ("Defendants") Motion to Strike ("Motion"), (D.I. 130 ), and the briefing related thereto, (D.I. 131 ; D.I. 138 ; D.I. 142 ), and it heard the parties' arguments on the Motion during an August 26, 2024 videoconference. With their Motion, Defendants move to strike Plaintiff's supplemental responses to Defendants' Interrogatories ("ROGs") Nos. 1 and 2 and Plaintiffs' validity contentionsto the extent that those responses/contentions rely on an earlier (i.e., Nov. 25, 2003) priority date based on conception. (D.I. 131 at 1, 3) As an initial matter, the Court agrees with Defendants that Plaintiffs' April 4, 2024 supplementation of their responses to ROG Nos. 1 and 2 to assert this new priority date for the first time (supplementation that came just over a month prior to the close of fact discovery) was untimely. The new priority date was disclosed almost seven months after Plaintiffs' initial response to the ROGs (in which they had asserted a later-in-time priority date of Dec. 22, 2004)after Defendants had, for months, been inquiring about whether the asserted priority date would change (and Plaintiffs had been putting off responding to Defendants' entreaties). (D.I. 131 at 2 & ex. 10) It involved an issue that Plaintiffs had to know was very important to the case (because Defendants were asserting that a key reference, Bodor, anticipates the patents, and Bodor predated the previously-asserted Dec. 22, 2004 priority date). And it involved an issue as to which all of the facts needed to justify the new, earlier priority date were solely in Plaintiffs possession. The Court understands that it takes some time for even diligent counsel to investigate whether an earlier priority date is justified in a case like this. But under the circumstances here, the Court concludes that Plaintiffs should have supplemented this response months before they did. And so their April 4, 2024 supplementation was untimely pursuant to Fed. R. Civ. P. 26. Cf. Integra LifeSciences Corp. v. Hyperbranch Med. Tech., Inc., Civil Action No. 15-819-LPS-CJB, 2018 WL 3814614, at 3 (D. Del. Mar. 23, 2018); Elbit Sys. Land & C4I Ltd. v. Hughes Network Sys., LLC, Case No. 2:15-CV-00037-RWS-RSP, 2017 WL 2651618, at 10 (E.D. Tex. June 20, 2017). That said, after assessing the Pennypack factors, the Court finds that they weigh in favor of DENYING the Motion pursuant to Fed. R. Civ. P. 37(c)(1), cf. GlaxoSmithKline LLC v. Glenmark Pharms., Inc., Civil Action No. 14-877-LPS-CJB, Civil Action No. 14-878-LPS-CJB, 2017 WL 11685418, at 9-10 (D. Del. Jan. 20, 2017), and so the Motion is DENIED for the reasons that follow: (1) With regard to the first Pennypack factor (the surprise or prejudice to the moving party), the Court acknowledges that Defendants might well have been at least somewhat surprised by the late disclosure, since (contrary to Plaintiffs' argument), (D.I. 138 at 1-2, 5), the Court does not see how Plaintiffs had clearly conveyed the substance of their Nov. 25, 2003 priority position at any point before April 4, 2024. (D.I. 131 at 1-2); (2) That said, with regard to prejudice (factor one), the ability of the moving party to cure any such prejudice (factor two) and the extent to which denying the motion would affect the trial date (factor three), Defendants did not make a strong showing here. Defendants had the opportunity to tell the Court exactly what type of discovery they would have sought had they known of the new priority date earlier in the case (and that, under the circumstances here, they would still need to seek). But their briefing on this issue was vague. (See D.I. 131 at 2-3 & n.5; D.I. 142 at 1-2) Indeed, Plaintiffs note to the contrary that: (a) because the disclosure came well before inventor depositions, Defendants were able to question the inventors about the new asserted priority date; (b) Defendants' final invalidity contentions lay out pages of analysis purporting to challenge the new priority date; and (c) Defendants have multiple arguments for invalidity as to references that pre-date the new priority date. (D.I. 138 at 2 & n.15, 4; id., exs. 13-14) Therefore, the Court does not see how Defendants have established why they would be significantly prejudiced were the Motion denied, nor why any cure is needed, nor why the trial is impacted at all by the late disclosure.; (3) With regard to the fourth factor (bad faith or willfulness in failing to comply), the Court does not have a basis to conclude Plaintiffs acted in bad faith. This is not a case where Plaintiffs have repeatedly sandbagged Defendants or have otherwise played fast and loose with the rules. Nor is it one where the Court has other information to suggest bad faith. At most, it seems, Plaintiffs were dilatory here.; and (4) As to the fifth factor (the importance of the information sought to be excluded), it is undisputed that what Defendants seek to strike is important information. Bodor is undisputedly key to Defendants invalidity argumentsand so it follows that defending against Bodor is also key to Plaintiffs case. See Abbott Laby's v. Lupin Ltd., Civil Action No. 09-152-LPS, 2011 WL 1897322, at 3 (D. Del. May 19, 2011) (explaining that the "exclusion of critical evidence... is an extreme sanction not normally to be imposed absent a showing of willful deception or flagrant disregard of a court order by the proponent of the evidence") (internal quotation marks and citation omitted). Ordered by Judge Christopher J. Burke on 8/28/2024. (mpb) (Entered: 08/28/2024) ORAL ORDER: The Court has reviewed the Apotex Defendants' ("Defendants") Motion to Strike ("Motion"), (D.I. 130 ), and the briefing related thereto, (D.I. 131 ; D.I. 138 ; D.I. 142 ), and it heard the parties' arguments on the Motion during an August 26, 2024 videoconference. With their Motion, Defendants move to strike Plaintiff's supplemental responses to Defendants' Interrogatories ("ROGs") Nos. 1 and 2 and Plaintiffs' validity contentionsto the extent that those responses/contentions rely on an earlier (i.e., Nov. 25, 2003) priority date based on conception. (D.I. 131 at 1, 3) As an initial matter, the Court agrees with Defendants that Plaintiffs' April 4, 2024 supplementation of their responses to ROG Nos. 1 and 2 to assert this new priority date for the first time (supplementation that came just over a month prior to the close of fact discovery) was untimely. The new priority date was disclosed almost seven months after Plaintiffs' initial response to the ROGs (in which they had asserted a later-in-time priority date of Dec. 22, 2004)after Defendants had, for months, been inquiring about whether the asserted priority date would change (and Plaintiffs had been putting off responding to Defendants' entreaties). (D.I. 131 at 2 & ex. 10) It involved an issue that Plaintiffs had to know was very important to the case (because Defendants were asserting that a key reference, Bodor, anticipates the patents, and Bodor predated the previously-asserted Dec. 22, 2004 priority date). And it involved an issue as to which all of the facts needed to justify the new, earlier priority date were solely in Plaintiffs possession. The Court understands that it takes some time for even diligent counsel to investigate whether an earlier priority date is justified in a case like this. But under the circumstances here, the Court concludes that Plaintiffs should have supplemented this response months before they did. And so their April 4, 2024 supplementation was untimely pursuant to Fed. R. Civ. P. 26. Cf. Integra LifeSciences Corp. v. Hyperbranch Med. Tech., Inc., Civil Action No. 15-819-LPS-CJB, 2018 WL 3814614, at 3 (D. Del. Mar. 23, 2018); Elbit Sys. Land & C4I Ltd. v. Hughes Network Sys., LLC, Case No. 2:15-CV-00037-RWS-RSP, 2017 WL 2651618, at 10 (E.D. Tex. June 20, 2017). That said, after assessing the Pennypack factors, the Court finds that they weigh in favor of DENYING the Motion pursuant to Fed. R. Civ. P. 37(c)(1), cf. GlaxoSmithKline LLC v. Glenmark Pharms., Inc., Civil Action No. 14-877-LPS-CJB, Civil Action No. 14-878-LPS-CJB, 2017 WL 11685418, at 9-10 (D. Del. Jan. 20, 2017), and so the Motion is DENIED for the reasons that follow: (1) With regard to the first Pennypack factor (the surprise or prejudice to the moving party), the Court acknowledges that Defendants might well have been at least somewhat surprised by the late disclosure, since (contrary to Plaintiffs' argument), (D.I. 138 at 1-2, 5), the Court does not see how Plaintiffs had clearly conveyed the substance of their Nov. 25, 2003 priority position at any point before April 4, 2024. (D.I. 131 at 1-2); (2) That said, with regard to prejudice (factor one), the ability of the moving party to cure any such prejudice (factor two) and the extent to which denying the motion would affect the trial date (factor three), Defendants did not make a strong showing here. Defendants had the opportunity to tell the Court exactly what type of discovery they would have sought had they known of the new priority date earlier in the case (and that, under the circumstances here, they would still need to seek). But their briefing on this issue was vague. (See D.I. 131 at 2-3 & n.5; D.I. 142 at 1-2) Indeed, Plaintiffs note to the contrary that: (a) because the disclosure came well before inventor depositions, Defendants were able to question the inventors about the new asserted priority date; (b) Defendants' final invalidity contentions lay out pages of analysis purporting to challenge the new priority date; and (c) Defendants have multiple arguments for invalidity as to references that pre-date the new priority date. (D.I. 138 at 2 & n.15, 4; id., exs. 13-14) Therefore, the Court does not see how Defendants have established why they would be significantly prejudiced were the Motion denied, nor why any cure is needed, nor why the trial is impacted at all by the late disclosure.; (3) With regard to the fourth factor (bad faith or willfulness in failing to comply), the Court does not have a basis to conclude Plaintiffs acted in bad faith. This is not a case where Plaintiffs have repeatedly sandbagged Defendants or have otherwise played fast and loose with the rules. Nor is it one where the Court has other information to suggest bad faith. At most, it seems, Plaintiffs were dilatory here.; and (4) As to the fifth factor (the importance of the information sought to be excluded), it is undisputed that what Defendants seek to strike is important information. Bodor is undisputedly key to Defendants invalidity argumentsand so it follows that defending against Bodor is also key to Plaintiffs case. See Abbott Laby's v. Lupin Ltd., Civil Action No. 09-152-LPS, 2011 WL 1897322, at 3 (D. Del. May 19, 2011) (explaining that the "exclusion of critical evidence... is an extreme sanction not normally to be imposed absent a showing of willful deception or flagrant disregard of a court order by the proponent of the evidence") (internal quotation marks and citation omitted). Ordered by Judge Christopher J. Burke on 8/28/2024. (mpb) (Entered: 08/28/2024)
08/28/24	Merck KGaA v. Hopewell Pharma Ventures Inc 1:22-CV-01365 ( D. DE )	MEMORANDUM ORDER re [70] MOTION for Claim Construction filed by Ares Trading SA, Merck Serono SA, Merck KGaA; re [71] MOTION - Defendants' Motion for Claim Construction filed by Hopewell Pharma Ventures, Inc., and re [141] REPORT AND RECOMMENDATIONS Signed by Judge Gregory B. Williams on 8/28/2024. (lnb) (Entered: 08/28/2024)
08/28/24	Merck KGaA v. Hopewell Pharma Ventures Inc 1:22-CV-01365 ( D. DE )	MEMORANDUM ORDER re 70 MOTION for Claim Construction filed by Ares Trading SA, Merck Serono SA, Merck KGaA; re 71 MOTION - Defendants' Motion for Claim Construction filed by Hopewell Pharma Ventures, Inc., and re 141 REPORT AND RECOMMENDATIONS Signed by Judge Gregory B. Williams on 8/28/2024. (lnb) (Entered: 08/28/2024)
08/27/24	Merck KGaA v. Hopewell Pharma Ventures Inc 1:22-CV-01365 ( D. DE )	Minute entry for proceedings held before Judge Christopher J. Burke Hearing on Defendants' Motion to Strike held on August 26, 2024. The Court heard the parties' arguments regarding Defendants Motion to Strike. (D.I. 130 ) The Court took the matter under advisement. (Clerk: A. Herman; Court reporter: Deanna Warner) Appearances: J. Tigan, V. Ferrera, R. Million-Perez and D. Bassett for Plaintiffs; C. Hitch, S. Auten, L. Shannon and J. Shah for Defendants. (mpb) (Entered: 08/27/2024) Minute entry for proceedings held before Judge Christopher J. Burke Hearing on Defendants' Motion to Strike held on August 26, 2024. The Court heard the parties' arguments regarding Defendants Motion to Strike. (D.I. 130 ) The Court took the matter under advisement. (Clerk: A. Herman; Court reporter: Deanna Warner) Appearances: J. Tigan, V. Ferrera, R. Million-Perez and D. Bassett for Plaintiffs; C. Hitch, S. Auten, L. Shannon and J. Shah for Defendants. (mpb) (Entered: 08/27/2024)
08/26/24	Merck KGaA v. Hopewell Pharma Ventures Inc 1:22-CV-01365 ( D. DE )	NOTICE OF SERVICE of (1) Rebuttal Expert Report of Lawrence Steinman, M.D.; and (2) Rebuttal Expert Report of Fred D. Lublin, M.D. filed by Ares Trading SA, Merck KGaA, Merck Serono SA.(Tigan, Jeremy) (Entered: 08/26/2024)
08/23/24	Merck KGaA v. Hopewell Pharma Ventures Inc 1:22-CV-01365 ( D. DE )	NOTICE OF SERVICE of Rebuttal Expert Report of Samuel Pleasure, M.D., Ph.D. filed by Hopewell Pharma Ventures, Inc..(Hoeschen, Nathan) (Entered: 08/23/2024)
08/15/24	Merck KGaA v. Hopewell Pharma Ventures Inc 1:22-CV-01365 ( D. DE )	Pro Hac Vice Fee - Credit Card Payment received for Stephen R. Auten and Jaimin H. Shah. ( re 159 MOTION for Pro Hac Vice Appearance of Attorney Stephen R. Auten and Attorney Jaimin H. Shah )( Payment of $ 100, receipt number ADEDC-4476717).(Dorsney, Kenneth) (Entered: 08/15/2024)
08/15/24	Merck KGaA v. Hopewell Pharma Ventures Inc 1:22-CV-01365 ( D. DE )	MOTION for Pro Hac Vice Appearance of Attorney Stephen R. Auten and Attorney Jaimin H. Shah - filed by Apotex Corp., Apotex Inc.. Motions referred to Christopher J. Burke.(Dorsney, Kenneth) (Entered: 08/15/2024)
08/15/24	Merck KGaA v. Hopewell Pharma Ventures Inc 1:22-CV-01365 ( D. DE )	SO ORDERED, D.I. [159] MOTION for Pro Hac Vice Appearance of Attorney Stephen R. Auten and Attorney Jaimin H. Shah filed by Apotex Inc., Apotex Corp. Ordered by Judge Christopher J. Burke on 8/15/2024. (smg) (Entered: 08/15/2024)
08/15/24	Merck KGaA v. Hopewell Pharma Ventures Inc 1:22-CV-01365 ( D. DE )	SO ORDERED, D.I. 159 MOTION for Pro Hac Vice Appearance of Attorney Stephen R. Auten and Attorney Jaimin H. Shah filed by Apotex Inc., Apotex Corp. Ordered by Judge Christopher J. Burke on 8/15/2024. (smg) (Entered: 08/15/2024)