`
`Washington, D.C.
`
`A
`
`In the Matter of
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`CERTAIN RECOMBINANT FACTOR
`VIII PRODUCTS
`
`Inv. N0. 337-TA-956
`
`ORDER NO. 41:
`
`GRANTING COMPLAINANTS’ MOTION FOR LEAVE TO
`SUPPLEMENT
`
`(March ll, 2016)
`
`On February 29, 2016, Complainants Baxter International Inc., Baxter Healthcare
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`Corporation, Baxter Healthcare SA, Baxalta Incorporated, Baxalta US Inc, and Baxalta GmbH
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`(collectively, “Baxter”) filed a motion for leave to supplement the record with a translation of the
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`Austrian patent application to which the asserted patents claim priority (Motion Docket No.
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`956-041). Baxter attached the translation as Exhibit A to its motion. Respondents Novo Nordisk
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`A/S and Novo Nordisk Inc. (collectively, “Novo Nordisk”) filed a response in opposition on
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`March 10, 2016. The Commission Investigative Staff (“Staff”) also filed a response on March
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`l0, 2016, supporting the motion.
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`Baxter argues that the priority date for the asserted patents was not in dispute until Novo
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`Nordisk raised the issue for the first time in its Pre-Trial Brief, and the translation is submitted to
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`respond to this late contention. Mot. Mem. at 2-3. Novo Nordisk argues that it is Baxter’s
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`burden to establish the priority date for the asserted patents, and Baxter should be precluded from
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`submitting this late evidence. Novo Opp. at 3-5. Both Novo Nordisk and Staff argue that no
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`supplemental expert testimony on the translation should be allowed. Id. at 5; Staff Resp. at 2.
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`
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`As recognized by Novo Nordisk in its response, the priority date of the asserted patents is
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`only in controversy because of Baxter’s contention regarding concealment and suppression of
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`prior art. Novo Opp. at 5 (citing Order No. 32 at l5 (March 9, 2016)). Novo Nordisk has been
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`allowed to challenge the priority date of the asserted patents in response to Baxter’s contention,
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`and in accordance with Order No. 32, Baxter should also be allowed to offer evidence in rebuttal.
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`The Austrian patent application is indisputably relevant to the issues in this Investigation, and the
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`parties have not identified any cognizable prejudice that would result from receiving the
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`translation into evidence.1 The exhibit attached to Baxter’s motion includes a certification fiom
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`the translator, and no party challenges its authenticity.
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`Accordingly, Motion Docket No. 956-041 is hereby GRANTED. Pursuant to Ground
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`Rule 9.4.9, Baxter shall identify the Austrian patent application and its translation with a single
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`exhibit number, and this exhibit may be identified with other exhibits being admitted without a
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`sponsoring witness at the prehearing conference. See Order N0. 39 (March ll, 2016).
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`SO ORDERED.
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`*ta with
`
`Dee Lord
`Administrative Law Judge
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`1Supplemental expert testimony would likely be prejudicial, but no party has sought leave to
`amend any witness statement to offer testimony regarding the translation.
`
`2
`
`
`
`CERTAIN RECOlV[B]1\lANTFACTOR VIII PRODUCTS
`
`Inv. No. 337-TA-956
`
`PUBLIC CERTIFICATE OF SERVICE
`
`I, Lisa R. Barton, hereby certify that the attached ORDER has been served by hand upon
`the Commission Investigative Attorney Brian Koo, Esq., and the following parties as indicated,
`on
`MAR l
`1 Z1115
`
`Lisa R. Bartdn, Secretary
`U.S. International Trade Commission
`500 E Street, SW, Room 112
`Washington, DC 20436
`
`On Behalf of Complainants Baxter International Inc...Baxter
`Healthcare Corporation. and Baxter Healthcare SA:
`
`David H. Hollander, Jr., Esq.
`ADDUCI, MASTRIANI & SCHAUMBERG, LLP
`1133 Connecticut Avenue, NW, 12thFloor
`Washington, DC 20036
`
`Cl V' Hand Delivery
`[Q/6:1 Express Delivery
`[II Via First Class Mail
`1:1Other:
`
`On Behalf of Respondents Novo Nordisk A/S and Novo
`Nordisk Inc.:
`
`David F. Nickel, Esq.
`FOSTER, MURPHY, ALTMAN & NICKEL, PC
`1899 L Street NW, Suite 1150
`Washington, DC 20036 _
`
`5/</la Hand Delivery
`Via Express Delivery
`U Via First Class Mail
`U Other:
`
`
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