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Case 1 :07-cv-00438-JJF Document 31 Filed 12/21 /2007 Page 1 of 4
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December 21, 2007
The Honorable Joseph J. Farnan, Jr.
United States District Court for the District of Deiaware
844 North King Street, Lock Box 27
Wilmington, DE 19801
RE: Sepracor Inc. v. Barr Laboratories, Inca,
C.A. N0. 07—438-JJF
Dear Judge Farnan:
This is a joint letter on behalf of Plaintiff Sepracor Inc. (“Sepracor") and Defendant Barr
. Laboratories, Inc. (“Barr") in response to the Court’s December 12, 2007 Order requesting a
status report in the above··captioned case.
This is an ANIJA case tiied pursuant to the H&¥Ch—WHXm&H Act. Barr Laboratories is one
of three companies that Sepracor sued, within forty—tive days, after being notified that ANDA
applications with Paragraph IV certifications were tiied seeking approval to market generic
versions of Sepr·acor’s XOi’ENEX® brand of ievalbuterol hydrochloride inhalation soiutions.
I Sepracor filed suit against the three ANDA applicants in separate actions. On October 21, 2005,
Sepracor filed suit against Defendant Breath Limited in the District of Massachusetts, C.A.tNo.
06—10043—DPW (the "Breath case"). On Februaiy 22, 2006 and September 27, 2006, Sepracor
tiled suit against Defendants Dey, L.P. and Dey, Inc., in this district, C.A. Nos. 06—1 13 and 06-
604 JJF, which have been consolidated under C.A. No. 06-1 13 JJF (the "Dey case"). On July 12,
2007, Sepracor tiled suit against Defendant Barr Laboratories, Inc. in this district, C.A. No. 07-
438 JJF (the "Barr case"). The Dey case is the subject of a separate status report being tiled
concurrently. The Dey and Barr cases are now pending before Your Honor.
D In its answer, Barr asserted a number of counterclaiins and included a demand for a jury
trial. On September 4, 2007, Sepracor tiled a Motion to Strike the Jury Demand of Barr. Barr
tiled its response on September 18. Brieting is complete on that motion. _
The parties have attempted to work out a scheduling order, and have had two
teleconferences with Magistrate Judge Thynge on the issue. The parties have reached an
agreement as to the following dates:

Case 1 :07-cv-00438-JJF Document 31 Filed 12/21 /2007 Page 2 of 4
The Honorable Ioseph J. Farnan, Jr.
THE BAYARD FIRM December 21, 200*:

Exchange of Claim Terms to Construe March 5, 2008
Joint Clairn Construction Chart April l0, 2008
initial Markman Briefs April 10, 2008
Answering Markman Briefs May l, 2008
Interim Status Report with Court May 7, 2008
Rule 16(a), (b), and (c) Status Conference May 14, 2008
Markman Hearing August 2008
Fact Discovery Complete September 1, 2008
initial Expert Reports Due November 12, 2008
Responsive Expert Reports December 19, 2008
The scheduling of Markman proceedings relatively early in the litigation reflects Judge
Thynge’s suggestion to conform the Markman schedule in this case to that in the related
Sepmcor v. Dey matter, C.A. No. 06-113, also before your Honor. No date for the Markman
Hearing has been set in either case as of yet.
The parties have been unable to reach an agreement on two issues in the Scheduling Plan,
and on December 7, 2007, counsel for Barr submitted a letter to Magistrate Judge Thynge setting
forth those issues. The parties have been unable to reach a decision on the final date for the
joinder of other parties and amendment of pleadings. The parties have also been unable to reach
a decision on the number of hours allocated for non-expert depositions. Defendants would like
150 hours of deposition time while Plaintiffs believe that 50 hours is sufficient. That letter also
set forth unresolved issues between the parties concerning the Protective Order.
To date, the parties have exchanged Rule 26 initial Disclosures, andthe parties have just
begun fact discovery. No trial date has been set.
Regarding the earliest-tiled Breath case inthe District of Massachusetts, all discovery
other than expert depositions has been completed. Markman briefing is scheduled to be
1 completed by January 28, 2008 with the Markman hearing taking place on February 21 and 22,
2008. The court in the Breath case has indicated that it will try to issue a Markman ruling within
45 days of the hearing. Trial in the Massachusetts case is currently scheduled for July 14 —
l August 1, 2008.

I Case 1:07-cv-00438-JJF Document 31 Filed 12/21/2007 Page 3 014
The Honorable Joseph I. Faman, Jr.
THE BAYARD FIRM December 21, 2007
ichard D. Kirk (
cc: Original to Coun, by hand
All counsel of record as shown 01*1 attached service list

Case 1:07-cv-00438-JJF Document 31 Filed 12/21/2007 Page 4 of 4
CERTIFICATE OF SERVICE
The undersigned counsel certiiies that, on December 21, 2007, he electronically
n fiied the foregoing document with the Clerk of the Court using CM/ECP, which will send
automatic notification of the tiling to the following:
Richard K. Herrmann, Esquire
Mary B. Matterer, Esquire
MORRIS JAMES LLP
500 Delaware Avenue, Suite E500
Wilmington, Delaware 19801-1494
The undersigned counsel further certifies that, on December 21, 2007, copies of
the foregoing document were sent by email and hand to the above iocai counsel and by
email and first class mai} to the following noneregistered participant:
George C. Lombardi, Esquire
Imron T. Aiy, Esquire
Elizabeth H. Erickson, Esquire
WINSTON & STRAWN LLP
35 West Wacker Drive
Chicago, IL 60601
/s/ Richard D. Kirk trk0922[
Richard D. Kirk
667705-I