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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
) AMGEN INC., ) ) Plaintiff, ) ) Civil Action No.: 05-12237 WGY v. ) ) ) F. HOFFMANN-LA ROCHE ) LTD., a Swiss Company, ROCHE ) DIAGNOSTICS GmbH, a German ) Company and HOFFMANN-LA ROCHE ) INC., a New Jersey Corporation, ) ) Defendants. )  __________________________________________)
AMGEN INC.’S MOTION TO STRIKE MATTERS RAISING UNPLEADED ALLEGATIONS REGARDING AMGEN’S MOTION FOR SUMMARY JUDGMENT OF NO INEQUITABLE CONDUCT AND TO STRIKE UNTIMELY EXPERT TESTIMONY
Case 1:05-cv-12237-WGY Document 733 Filed 07/16/2007 Page 1 of 14
 
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I.
 
INTRODUCTION AND LEGAL STANDARD
In opposing Amgen’s Motion for Summary Judgment of No Inequitable Conduct (“Amgen’s I.C. Motion”), Roche introduced mountains of new theories, facts, and expert evidence that were not pleaded in its First Amended Answer, and in many cases not even
related 
 to issues pleaded in its First Amended Answer. Roche’s attempt to bring back in through summary judgment what it lost on June 7, 2007 when this Court denied its motion to amend the  pleadings should not be entertained. Further, Roche has interspersed throughout its supporting papers facts and arguments ostensibly related to pleaded allegations with those that are not, creating confusion as to the issues properly before the Court. Whether Roche’s conduct is intentional or not, the result is no different: Amgen is prejudiced by the frustration of a legal process otherwise intended to narrow the issues for trial. The burden now falls to Amgen and the Court to parse dozens of new allegations, set forth in 352 paragraphs in Roche’s Rule 56.1 Statement of Material Fact and in multiple new expert declarations, in order to sort out what actually corresponds to Roche’s  pleaded allegations and what does not. If Roche had thought these new allegations to be meritorious, it would have disclosed them when given the opportunity to plead with particularity its inequitable conduct defense in its First Amended Answer. Since it failed to do so, Roche should not be allowed to use them in response to Amgen’s motion for summary judgment. For these reasons, all of Roche’s supporting papers should be stricken from the record of Amgen’s I.C. Motion. At the very least, the Court should strike the discrete portions of Roche’s opposition materials that address matters outside the pleadings. In addition, the declarations of Michael Sofocleous offered by Roche in support of or in opposition to the parties’ motion for summary judgment include statements and opinions not
Case 1:05-cv-12237-WGY Document 733 Filed 07/16/2007 Page 2 of 14
 
 
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 contained in his expert reports. Such declarations, coming after the deadline for filing expert reports, are not timely, and should not be considered. “A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) [governing expert report disclosure requirements], or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless,  permitted to use as evidence at trial, at a hearing,
or on a motion
 any witness or information not so disclosed. . . .”
1
 (emphasis added).
II.
 
ALLEGATIONS OF INEQUITABLE CONDUCT THAT ARE NOT PLEADED IN ROCHE’S FIRST AMENDED ANSWER SHOULD BE STRICKEN FROM ITS PAPERS OPPOSING AMGEN’S MOTION FOR SUMMARY JUDGMENT OF NO INEQUITABLE CONDUCT A.
 
U
NPLEADED
A
LLEGATIONS IN
OCHE
S
ULE
56.1
 
S
TATEMENT
 
On March 30, 2007, after Amgen objected that the original Answer was not properly  pleaded under Rule 9(b), Roche filed its First Amended Answer spelling out its expanded allegations of inequitable conduct.
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 Thereafter, Roche moved again to amend its answer, this time to add more than a dozen new theories of inequitable conduct, and by Order dated June 7, 2007, the Court denied Roche’s motion to amend.
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 As a result, the only theories and allegations of inequitable conduct in this case are those that appear in Roche’s First Amended Answer of March 30, 2007. Yet, throughout Roche’s Rule 56.1 Statement of Material Fact (Rule 56.1 Statement), Roche raises facts and allegations that go
1 Fed. R. Civ. P. 37(c)(1) (emphasis added).
2
 
Amgen had opposed Roche’s First Amended Answer on the ground that, even as amended, Roche’s pleading failed to meet the requirements of Fed. R. Civ. P. 9(b).
See
 D.I. 171. Roche’s motion was granted, however, and thus Roche should not now be permitted to expand beyond those specific allegations.
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Roche has again sought to re-plead its inequitable conduct case by a second motion to amend with its “Amended Proposed Second Amended Answer.Amgen is opposing that motion by way of separate brief.
 
Case 1:05-cv-12237-WGY Document 733 Filed 07/16/2007 Page 3 of 14

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