Free Response in Support of Motion - District Court of California - California

Case 3:07-cv-02294-L-BLM

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Dan Lawton (State Bar No. 127342) Joseph C. Kracht (State Bar No. 228507) Matt Valenti (State Bar No. 253978) Lisa M. Pisano (State Bar No. 256882) LAWTON LAW FIRM Emerald Plaza 402 West Broadway, Suite 1860 San Diego, CA 92101 (619) 595-1370 (619) 595-1520 (Telefacsimile Number) [email protected] (electronic mail) Attorneys for Plaintiff AntiCancer, Inc.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

ANTICANCER, INC., a California corporation,

) ) ) Plaintiff, ) ) v. ) ) TECO DIAGNOSTICS, a California ) corporation; KC CHEN, a natural person; ) TONG CHIAH, a natural person; JIAN ) YANG VAECHES, a natural person; and ) DOES 1-30, ) ) Defendants. ) ) _________________________________ ) I, Robert M. Hoffman, declare: 1.

Case No. 07CV2294L (BLM) REPLY DECLARATION OF ROBERT M. HOFFMAN IN SUPPORT OF MOTION OF PLAINTIFF ANTICANCER, INC. FOR PARTIAL SUMMARY JUDGMENT OF PATENT INFRINGEMENT BY DEFENDANT TECO DIAGNOSTICS Date: Time: Place: Judge: July 21, 2008 10:30 a.m. Courtroom 14 Hon. M. James Lorenz

I am the founder and President of AntiCancer, Inc. Everything in this

declaration is true and correct of my own personal knowledge, and if called to testify in Court I could and would testify competently thereto. I make this declaration in response to the defendant Teco's Memorandum of Points and Authorities in Opposition to AntiCancer's Motion for Partial Summary Judgment. In this declaration I do not reiterate anything said in

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my previous declaration (of May 8, 2008), but instead limit my comments to Teco's opposition. 2. In its opposition papers, Teco refers several times to the Product Exclusive

Agreement ("PEA"). The PEA was never signed or agreed upon in any way, and so does not have any bearing on the relationship between Teco and AntiCancer. 3. I never indicated to KC Chen or Tong Chiah, whether by nodding my head or

saying "okay," that Teco had permission to put Teco's label on AntiCancer's HA Kit. Furthermore, I never agreed that Teco had permission to distribute a flyer showing pictures of AntiCancer's kit (with Teco branding) at the MEDICA meeting in Germany, at the American Association for Clinical Chemistry conference in San Diego ("AACC"), or to be posted on Teco's website or advertised in Clinical Laboratory International. 4. The "Flyer" at issue was not only distributed in Germany in November of 2006,

but at least once more at the AACC conference in San Diego from July 15 through 19, 2007. A true and correct copy of a photograph showing Teco's booth at AACC with the flyers prominently displayed is attached herein as Exhibit K. This flyer was demonstrating a socalled "product of Teco." In fact, the CEO of Teco was present at the booth, and told me and Morrison and Foerster attorneys David Doyle and Steven Comer that Teco was offering the kit for sale "worldwide." 5. At many times throughout their opposition, Teco refers to the relationship

between Teco and AntiCancer as a "joint venture" or "partnership." There was no such relationship. As mentioned in paragraph 3 above, the PEA was never signed. Teco and AntiCancer never came to an agreement regarding their business relationship. AntiCancer was not a joint venturer or partner with Teco at any time during their dealings, nor did AntiCancer ever grant Teco a license or imply that it granted Teco a license. 6. Teco has stated that the AntiCancer did not allege when negotiations broke

down. That is not true. In my May 8, 2008 declaration in support of the present motion, in paragraph 8, I stated that Tong Chiah contacted AntiCancer and informed us that Teco was no longer interested in pursuing a deal with us. More specifically, Tong Chiah spoke with Li

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Tang and told her that Teco did not want to work with AntiCancer because AntiCancer's HA Kit did not work. 7. Teco has claimed that it did not offer to sell AntiCancer's kit because none of

their marketing materials had a price. It is an industry standard in the medical diagnostics field to advertise products without a price, especially for very specialized kits like AntiCancer's HA Kit. This is because the range of prices for diagnostics kits is enormous depending on the buyer's country and how many kits a buyer orders. Therefore, it is typical for diagnostics companies like both AntiCancer and Teco to determine price on a case-bycase basis and not include pricing information on websites or in product catalogs. 8. I declare under the pains and penalties of perjury under the laws of the United

States that the foregoing is true and correct and that I have executed this declaration this 14th day of July, 2008 at San Diego, California.

s/ Robert M. Hoffman Robert M. Hoffman

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