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Finch Therapeutics Group Inc.
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Misc | Filed: May 21, 2024 | Entered: May 21, 2024 Ferring Pharmaceuticals Inc. et al v. Finch Therapeutics Group, Inc. et al
Patent | Delaware
Redacted Document
REDACTED VERSION of 338 Letter by Finch Therapeutics Group, Inc., Finch Therapeutics Holdings, LLC., Finch Therapeutics, Inc., Regents of the University of Minnesota. (Attachments: # 1 Exhibit A-B)(Farnan, Kelly)
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Misc | Filed: May 21, 2024 | Entered: May 21, 2024 Ferring Pharmaceuticals Inc. et al v. Finch Therapeutics Group, Inc. et al
Patent | Delaware
Redacted Document
REDACTED VERSION of 337 Letter, by Ferring Pharmaceuticals Inc., Rebiotix Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Text of Proposed Order, # 12 Certificate of Service)(Bourke, Mary)
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Order | Filed: May 20, 2024 | Entered: May 20, 2024 Ferring Pharmaceuticals Inc. et al v. Finch Therapeutics Group, Inc. et al
Patent | Delaware
Oral Order 1 - Terminate Hearings
ORAL ORDER re 333 Joint Motion for Discovery Dispute Teleconference. Having reviewed the parties' discovery dispute letter submissions and associated filings (D.I. 337; D.I. 338; D.I. 340), IT IS ORDERED that Ferring/Rebiotix's motion for leave to serve the supplemental expert report of Robert A. Britton, Ph.D. and the supplemental expert report of Jonathan D. Putnam is GRANTED-IN-PART. The motion is GRANTED with respect to Section IV of Putnam's supplemental report. (D.I. 337, Ex. 3 at 7-8) This section updates damages calculations based on sales data that was not available at the time of Putnam's expert report, and Finch/UMN does not object to this portion of Putnam's supplemental report. (Id.; D.I. 338 at 1 n.2) The balance of Ferring/Rebiotix's motion is DENIED without prejudice. Ferring/Rebiotix contends that the two supplemental expert reports narrowly address the recently issued U.S. Patent No. 11,944,654 (the "Hlavka '654 patent"), which is relevant to invalidity issues and shares a specification with the Hlavka PCT application that is already at issue in the case as a primary invalidating reference to several patents-in-suit. (D.I. 337 at 3) But Ferring/Rebiotix's moving submission fails to address two arguments at the heart of Finch/UMN's responsive submission: (1) there is no good cause for service of the supplemental expert reports after the close of expert discovery because the application that led to issuance of the Hlavka '654 patent was pending and published prior to service of opening expert reports; and (2) the supplemental expert reports represent a backdoor attempt to raise a claim for Finch/UMN's infringement of Ferring/Rebiotix's patent without the benefit of discovery, claim construction, or contentions. (D.I. 338 at 1-2) Ferring/Rebiotix has not demonstrated good cause for the late disclosure of the supplemental expert opinions. See TQ Delta, LLC v. 2Wire, Inc., C.A. No. 13-1835-RGA, 2019 WL 1529952, at *2 (D. Del. Apr. 9, 2019) (considering motion for leave to serve supplemental expert reports under the good cause and Pennypack standards). Ferring/Rebiotix's position that earlier disclosure was not possible because the Hlavka '654 patent did not issue until April 2, 2024 is not persuasive because the published patent application leading to the issuance of the Hlavka '654 patent was available during expert discovery and, therefore, could have been addressed in Britton's opinions. (D.I. 337 at 3; Ex. 8 at Cover; D.I. 193 at 2); see Becton, Dickinson & Co. v. Baxter Corp. Englewood, 998 F.3d 1337, 1339 (Fed. Cir. 2021) (analyzing U.S. patent publication as a prior art reference). The Pennypack factors also weigh against granting the requested relief. See Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 904 (3d Cir. 1977). Finch/UMN argues that the supplemental expert reports are prejudicial to the extent that they introduce a new theory that Finch/UMN infringes Ferring/Rebiotix's Hlavka '654 patent, a theory Ferring/Rebiotix previously attempted to include in a counterclaim before withdrawing it which would require significant additional discovery. (D.I. 338 at 3; D.I. 324 at 11-12) This is supported by a review of the supplemental expert reports. Britton's supplemental report contains sections on how Finch/UMN's products are "an embodiment of... the Hlavka '654 patent," and Putnam's supplemental report incorporates Britton's opinion into his supplemental damages analysis. (D.I. 337, Ex. 2 at 5-9; Ex. 3) Although Ferring/Rebiotix represents that it satisfied its meet and confer obligations under the Court's discovery dispute procedures, Ferring/Rebiotix fails to address Finch/UMN's argument regarding the assertion of a new infringement theory. (D.I. 333 at 2; D.I. 337, Ex. 9) Ferring/Rebiotix's proposed cure of allowing brief responsive expert reports and limited expert depositions does not address the additional fact discovery that would be required to address new infringement theories, nor does it account for Finch/UMN's inability to challenge Ferring/Rebiotix's new theories through Daubert and summary judgment motions, which would be likely to impact the trial schedule. (D.I. 337 at 4; D.I. 338 at 4) The Court makes no finding of bad faith under the fourth Pennypack factor, but the fifth factor weighs against permitting the supplemental reports because Ferring/Rebiotix has not shown how the Hlavka '654 patent is important to its invalidity position when the Hlavka PCT application featuring the same specification is already in the case as a primary invalidating reference. (D.I. 337 at 3) ("The Hlavka patent (along with its priority application) is a primary invalidating reference[.]"). On balance, the Pennypack factors do not weigh in favor of all... (truncated)
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