Free Letter - District Court of Delaware - Delaware

Case 1 :07-cv-00753-JJF Document 29 Filed O1/07/2008 Page 1 of 2
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Philip A. Rovner
SlI'€€l.
?O· Bm 951 [email protected]
Wilmington, DE t9899-0951 302—984—6 140 Direct Phone _
202 sei mso 3024358-1 192 Fax
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January 7, 2008
BY E-FILE
The Honorable Joseph J. Farnan, Jr.
U.S. District Court for the District of Delaware
U.S. Courthouse
844 North King Street
Wilmington, DE 19801
Re: Roche Diagnostics Operations Incorporated, et al. v.
_ Abbott Diabetes Care, Incorporated, et al.,
D. Del., CA. No. 07·~753~JJF
Dear Judge Farnan:
We represent plaintiffs Roche Diagnostics Operations Inc. and Corange
International (collectively ‘°Roche”) in the above—referenced action. We write in response to the
Eanuary 4 letter submitted by Abbott’s counsel, requesting a deferral of the January lllh
Scheduling Conference. For the reasons set forth below, Roche opposes Defendants’ attempt to
delay the conference. ·
In their letter, Defendants argue that the Scheduling Conference should be
deferred because they have not yet responded to the Complaint. Roche tiled and served the
Complaint on all Defendants in November 2007. The only reason that Defendants have not yet
responded is because they requested (and Roche stipulated) an extension of the normal deadline
to respond. Roche is disappointed that its previous agreement allowing the Defendants to extend
their normal due date is now being used as leverage to try to postpone the Rule 16(b) Scheduling
Conference.
There is no need or reason to postpone the Scheduling Conference simply because
Defendants have not yet responded to the Complaint. Should the Defendants have any claims or
defenses that they wish to qualify in some unusual manner, they can address this situation at the
Scheduling Conference. Indeed, that situation argues in [over of proceeding with the
conference, not delaying it.
Further, the preparations are fully on track for holding the Rule 16(b) Scheduling
Conference on January l 1, as this Court has ordered (DI. 16). Roche submitted a draft Joint
froposed Scheduling Order to the Defendants weeks ago. The parties have recently met and

Case 1:07-cv-00753-JJF Document 29 Filed O1/07/2008 Page 2 of 2
The Joseph J. Farnan, Jr.
January 7, 2008
Page 2
conferred regarding the Joint Proposed Scheduling Order, noting areas of agreement and
disagreement in the document where appropriate. Further delay would accomplish nothing.
Defendants’ final argument ·-— that the Scheduling Conference should be deferred ‘
because Abbott (i) has asked the PTO to rcexamine the patents in suit, and (ii) will soon file a
motion to stay this lawsuit based on its reexamination requests »—~ should similarly be rejected.
Abbott’s reexamination requests rely solely on prior art that was fully considered bythe PTO
during previous examination ofthe patents in suit. Roche expects Abbott’s requests for
reexarnination to be denied, but it is indispntable that those requests currently face an uncertain
future at best.
ln view of these considerations, Roche respectfully requests that the Defendants’
attempt to postpone the Rule 16(b) Scheduling Conference be denied, and that the conference
proceed on January il as scheduled.
Counsel are available at the Court’s convenience should Your Honor have any
questions.
J Respectfully, _
U
Philip A. Rovner
[email protected]
PAR/mes/841060
cc: Frederick L. Cottrell, HI, Esq. — by ECF and E-mail
Mary W. Bourke, Esq. — by ECP and E—mail
John W. Shaw, Esq. -~ by ECF and E—mail
Rodger D. Smith, Esq. — by ECP and E——mai1
Steven J. Balick, Esq. — by ECF and E—mail
T. Cole Peterson, Esq. - by E——mail

Case 1:07-cv-00753-JJF

Document 29

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Case 1:07-cv-00753-JJF

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