Free Notice to Take Deposition - District Court of Delaware - Delaware

Case 1:07-cv-00457-SLR

Document 59

Filed 05/16/2008

Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) ) ) ) ) ) ) ) ) ) ) )

CANCER RESEARCH TECHNOLOGY LIMITED and SCHERING CORPORATION, Plaintiffs, v. BARR LABORATORIES, INC., and BARR PHARMACEUTICALS, INC., Defendants.

Civil Action No. 07-457 (SLR)

NOTICE OF DEPOSITION PURSUANT TO FED. R. CIV. P. 30(b)(6) PLEASE TAKE NOTICE that, pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, plaintiffs Cancer Research Technology Ltd. and Schering Corporation (collectively, "Plaintiffs") will take the deposition by oral examination of defendants Barr Laboratories, Inc. and Barr Pharmaceuticals, Inc. (collectively "Barr"). The deposition will commence at 9:30 a.m. on July 8, 2008, at the offices of Ropes & Gray LLP, 1211 Avenue of the Americas, New York, New York 10036, or at such other time and place as counsel may agree. PLEASE TAKE FURTHER NOTICE that, pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, Barr is required to designate one or more officers, directors, managing agents, or other persons who will testify on its behalf with respect to each of the topics set forth in the attached Schedule A. In addition, Barr is requested to provide plaintiffs' counsel with written notice, at least one week in advance of the deposition, of the name and title of each

Case 1:07-cv-00457-SLR

Document 59

Filed 05/16/2008

Page 2 of 6

witness who will testify on behalf of Barr, and the particular topic(s) set forth in Schedule A as to which each such witness will testify. The deposition will be taken before a Notary Public or other officer authorized by law to administer oaths, and will continue from day to day until completed, weekends and holidays excepted, with such adjournments as to time and place that may be necessary. The deposition will be recorded by sound, video and/or stenographic means. You are invited to attend. MORRIS, NICHOLS, ARSHT & TUNNELL LLP

/s/ Rodger D. Smith II
_________________________________________ Jack B. Blumenfeld (#1014) Rodger D. Smith II (#3778) 1201 N. Market Street P.O. Box 1347 Wilmington, DE 19899-1347 (302) 658-9200 [email protected] [email protected] Attorneys for Plaintiffs Cancer Research Technology Limited and Schering Corporation

OF COUNSEL: Jesse J. Jenner Denise L. Loring Christopher J. Harnett ROPES & GRAY LLP 1211 Avenue of the Americas New York, NY 10036 (212) 596-9000 May 16, 2008

-2-

Case 1:07-cv-00457-SLR

Document 59

Filed 05/16/2008

Page 3 of 6

SCHEDULE A Definitions Plaintiffs incorporate by reference the Definitions set forth in Plaintiffs' First Set of Requests for Production of Documents and Things (Nos. 1-29). Deposition Topics 1. The design, research, development, evaluation, and testing of Barr's

Temozolomide capsules, including the design, research and development of dosing regimens for use with Barr's Temozolomide capsules. 2. The materials and methods of manufacture of Barr's Temozolomide

capsules, including the materials and methods used in the manufacture of the temozolomide active pharmaceutical ingredient (API). 3. Barr's relationship with and communications with ChemAgis, Ltd. and

ChemAgis USA, Inc. regarding Barr's Temozolomide capsules, including the supply and manufacture of temozolomide API. 4. All testing and studies done by or for Barr in connection with Barr's

Temozolomide capsules, including testing or studies related to the bioequivalence, dissolution profile and impurities. 5. The label(s) or package insert(s) associated with Barr's Temozolomide

capsules, including without limitation any consideration or evaluation of, or decision to include, dosage, strengths and indications on the label(s) or package insert(s). 6. Any comparison made, by or on behalf of Barr, with respect to the dosing

regimen of any Temozolomide capsule, including without limitation comparison of the dosage,

Case 1:07-cv-00457-SLR

Document 59

Filed 05/16/2008

Page 4 of 6

strengths and indications between or among Barr's Temozolomide capsules, TEMODAR®, or any other Temozolomide capsule. 7. 8. Barr's knowledge, awareness, testing and evaluation of TEMODAR®. Barr's ANDA No. 78-879, including without limitation all

communications to, from or with the FDA regarding such ANDA and Barr's decision and consideration regarding such ANDA. 9. The actual or intended commercialization, launch, marketing, promotion,

sale and distribution of Barr's Temozolomide capsules, including without limitation the expected, proposed, promoted, encouraged or intended dosage, strengths and indications of Barr's Temozolomide capsules. 10. patent. 11. Any opinion, evaluation or consideration regarding the infringement, nonThe circumstances under which Barr first became aware of the `291

infringement, validity, invalidity, enforceability, unenforceability or patentability of any claim of the `291 patent, including without limitation the preparation and contents of and reliance on the statements made in Barr's ANDA Notice. 12. All prior art searches performed by or on behalf of Barr concerning the

subject matter of the `291 patent and the prior art found or learned about as a result of the searches. 13. All prior art concerning the subject matter of the `291 patent of which Barr

is aware, including any and all references identified by Barr in response to Schering's Interrogatory No. 1.

-2-

Case 1:07-cv-00457-SLR

Document 59

Filed 05/16/2008

Page 5 of 6

14.

All objective indicia (for example, long-felt need, praise, copying and

adoption by others, initial skepticism and commercial success) that support the non-obviousness or alleged obviousness of the inventions of the `291 patent. 15. The design, materials, components, and methods of manufacture of Barr's

Temozolomide capsules. 16. The corporate structure of Barr Pharmaceuticals, Inc. and Barr

Laboratories, Inc., including, without limitation, the relationship between Barr Pharmaceuticals, Inc. and Barr Laboratories, Inc. 17. The organizational structure of Barr Pharmaceuticals, Inc. and Barr

Laboratories, Inc., including, without limitation, the identity of anyone who has ever had, or who will have, responsibility for the research, development, manufacture, testing, FDA evaluation, licensing, marketing, advertising, or sales of any of Barr's Temozolomide capsules. 18. All facts and circumstances that evidence, refute, or support Barr's

contention that Barr Pharmaceuticals, Inc. is not a proper party to this action.

2332015

-3-

Case 1:07-cv-00457-SLR

Document 59

Filed 05/16/2008

Page 6 of 6

CERTIFICATE OF SERVICE I hereby certify that on May 16, 2008, I caused the foregoing to be electronically filed with the Clerk of the Court using CM/ECF, which will send notification of such filing to: John C. Phillips, Jr., Esquire Brian E. Farnan, Esquire PHILLIPS, GOLDMAN & SPENCE, P.A. I further certify that I caused copies of the foregoing document to be served on May 16, 2008, upon the following in the manner indicated: John C. Phillips, Jr., Esquire Brian E. Farnan, Esquire PHILLIPS, GOLDMAN & SPENCE, P.A. 1200 North Broom Street Wilmington, DE 19806 George C. Lombardi, Esquire Taras A. Gracey, Esquire Stephanie S. McCallum, Esquire WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, IL 60601 VIA ELECTRONIC MAIL and HAND DELIVERY

VIA ELECTRONIC MAIL And FIRST CLASS MAIL

/s/ Rodger D. Smith II
Rodger D. Smith II (#3778)