Free Response to Motion - District Court of Delaware - Delaware

Case 1 :04-cv—00968—GI\/IS Document 126 Filed 08/26/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ALLERGAN, INC., and ALLERGAN ) p
SALES, LLC., )
)
L ` Plaintiffs, )
)
v. )
ALCON INC. ALCON g Civil Action No: 04-968-GMS
LABORATORIES, INC., and ALCON )
RESEARCH, LTD., )
)
Defendants. )
)
)
ALCON’S RESPONSE TO ALLERGAN’S PROVISIONAL
MOTION TO AMEND THE SCHEDULING ORDER
Defendants Alcon, Inc., Alcon Laboratories, Inc., and Alcon Research, Ltd. (together,
"Alcon”) submit this response in opposition to the "provisional motion" to amend the Scheduling
Order tiled by Allergan, Inc. and Allergan Sales, LLC (together, "Allergan”). (D.I. ll7.)1 ·
Allergan’s "provisional motion" is premature on its face, and its arguments reflect that it
is primarily a vehicle intended to provide Allergan with a mechanism for putting in the "last
word" on Alcon’s pending motion for leave to amend its answer. (D.I. 107.) Briefing on that
motion is complete, and should not be continued under the guise of a "provisiona1motion."
1 Allergan’s Provisional Motion to Amend the Scheduling Order was tiled electronically
on August 9, 2005, and was not served by hand. Accordingly, this statement has been filed
within the time prescribed by Fed. R. Civ. P. 6(e) and section E(5) of the Court’s February 8,
2005 order, regarding electronic case filing policies and procedures, the effect of which extended
Alcon’s time to tile this statement until and including, August 26, 2005.
WP3il 131305.2 0635341001

Case 1:04-cv—00968—Gl\/IS Document 126 Filed 08/26/2005 Page 2 of 4
Accordingly, the Court should deny Allergan’s motion as premature and improper.
Plaintiffs’ "provisional motion” is meritless for two additional reasons. @, Allergan
already possesses complete knowledge of why it chose to make the misleading arguments it
made to the PTO, why it failed to disclose the prior art references identified in the proposed
amended answer, and why Q identified Drs. Olejnik and Kerslake as the inventors of the late-
added claims concerning 0.15% brimonidine tartrate, despite neither even possessing knowledge
of the genesis of that alleged invention. These facts only became known to Alcon through
discovery, but are all inherently within the knowledge of Allergan. Thus, discovery of Alcon is
not needed for Allergan to defend against the new matters raised in the proposed amended
answer. §;g_@_1_d, even if some discovery were required, there is no need to alter the trial schedule
in this case, as would be the effect of Allergan’s motion. Alcon’s summary judgment motion is
fully briefed and pending; Allergan has elected not to file any summary judgment motion; and
the next court date on the Scheduling Order is not until January 9, 2006, when the Final Pretrial
Order and motions-in—limine are due. Certainly, there are no circumstances presented by
Allergan’s "provisional motion" that would justify a delay in that date, or in the scheduled _
March 6, 2006 trial date.
Delay is not a neutral circumstance in this case. It benefits Allergan and would prejudice
Alcon, whose tentatively approved new drug product is being kept off the market today only by
virtue of this litigation. A prompt trial to decide this case on the merits is in the public interest,
as lower cost drugs should not be rendered unavailable through the assertion of invalid and
unenforceable patents.
-2-
WP3:ll3l305,2 0625341001

Case 1:04-cv—00968—G|\/IS Document 126 Filed 08/26/2005 Page 3 of 4
For the foregoing reasons, Alcon respectfully requests that plaintiffs} provisional motion
to amend the Scheduling Order be denied.
Respectfully submitted,
Josy Ingersoll (No. 1088)
John W. Shaw (No. 3362)
Karen E. Keller (No. 4489)
Youwo CoNAwAY STARGATT & TAYLOR, LLP
The Brandywine Building
1000 West Street
Wilmington, Delaware 19801
(302) 571-6600
Email: [email protected]
Attorneys for defendants
Alcon, Inc., Alcon Laboratories Inc.,
OF COUNSEL: and Alcon Research, Ltd.
Daniel J. Thomasch
Brian D. Coggio
M. Veronica Mullally
ORRICK, HERRINGTON & SUTCLIFFE LLP
666 Fifth Avenue
New York, NY 10103 _
(212) 506-5000
Dated: August 25, 2005
-3-
WP3:l13l305.2 0635341001

Case 1:04-cv—00968—G|\/IS Document 126 Filed 08/26/2005 Page 4 of 4
CERTIFICATE OF SERVICE
I, Karen E. Keller, Esquire hereby certify that on August 26, 2005, I caused to be
electronically filed a true and correct copy of the foregoing document with the Clerk of the Court
using CM/ECF, which will send notification that such filing is available for viewing and
downloading to the following counsel of record:
William J. Marsden, Jr., Esquire
Fish & Richardson, P.A.
919 N. Market Street, Suite 1100
Wilmington, DE 19801
1 further certify that on August 26, 2005, I caused a copy of the foregoing document to be
served by hand delivery on the above captioned individual and upon the following non-registered
participants in the manner indicated:
BY FEDEX
Jonathan E. Singer, Esquire
Fish & Richardson, P.A.
3300 Dain Rauscher Plaza
60 South Sixth Street —
Minneapolis, MN 55402
YOUNG CONAWAY STARGATT & TAYLOR, LLP
Josy Ingersoll (No. 1088)
Karen E. Keller (N o. 4489)
The Brandywine Building
1000 West Street, 17th Floor
Wilmington, Delaware 19801
(302) 571·6600
[email protected]
Attorneys for Defendants
DB01:l592430.1 0635341001