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`No. 2019-2156
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`UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
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`GENENTECH, INC.,
`
`Plaintiff-Appellant,
`
`Plaintiff,
`
`CITY OF HOPE,
`
`v.
`AMGEN INC.,
`
`Defendant-Appellee.
`
`
`
`On Appeal from the United States District Court
`for the District of Delaware, No. 1:18-cv-00924-CFC, Judge Colm F. Connolly
`
`PLAINTIFF-APPELLANT GENENTECH, INC.’S MOTION FOR LEAVE
`TO MARK 293 ADDITIONAL WORDS AS CONFIDENTIAL IN ITS
`PRINCIPAL BRIEF
`
`Pursuant to Federal Circuit Rule 28(d), Plaintiff-Appellant Genentech, Inc.
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`(“Genentech”) respectfully moves for leave to mark 293 additional words as
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`confidential in its Principal Brief beyond the 15 words allotted by rule.
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`BACKGROUND AND REQUESTED RELIEF
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`In this appeal, Genentech seeks a review of the district court’s denial of a
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`preliminary injunction. Genentech’s opening brief discusses and relies on several
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`exhibits, filed under seal in the district court, that describe highly confidential,
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`competitively sensitive information relating to the Herceptin biosimilars market.
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`Case: 19-2156 Document: 18 Page: 2 Filed: 07/26/2019
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`For example, Genentech and its experts rely on information produced by
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`Defendant-Appellee Amgen Inc. (“Amgen”) under a protective order concerning
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`market forecasts, planned pricing, estimated uptake, predicted prescribing patterns,
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`and its perceptions of the business landscape to explain how Amgen’s launch will
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`cause Genentech irreparable harm. Genentech also relies on details regarding the
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`timing of Amgen’s decision to launch at risk and the confidential terms of its
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`settlements with third parties, some of the most competitively sensitive information
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`at issue in this case.
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`All of the information Genentech seeks to redact from its brief is covered by
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`a protective order in the district court, and thus has not been widely disclosed even
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`among the parties to this case.
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`ARGUMENT
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`A. Genentech Cannot Develop Its Argument Without Additional
`Disclosure Of Confidential Information.
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`Rule 28(d) provides that “each brief may mark confidential up to fifteen (15)
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`words.” Fed. Cir. R. 28(d)(1)(A). “A party seeking to mark confidential more
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`than fifteen words in any brief must file a motion with this court establishing that
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`the additional confidentiality markings are appropriate and necessary pursuant to a
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`statute, administrative regulation, or court rule. For example, a party may establish
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`that an argument cannot be developed without additional disclosure of confidential
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`- 2 -
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`Case: 19-2156 Document: 18 Page: 3 Filed: 07/26/2019
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`information in the brief, and public disclosure will risk causing competitive
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`injury.” Id.
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`Here, Genentech seeks to redact all references to Genentech’s, Amgen’s, and
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`third-party confidential, competitively sensitive information regarding their plans,
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`forecasts, business strategy, and licensing terms in what is predicted to become a
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`highly competitive Herceptin biosimilars market. This information is critical to the
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`merits of Genentech’s appeal; in particular, it is necessary to establish that
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`Genentech will suffer irreparable harm absent an injunction and that the balance of
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`hardships tips in its favor. See Tinnus Enters., LLC v. Telebrands Corp., 846 F.3d
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`1190, 1202 (Fed. Cir. 2017) (standard to establish entitlement to a preliminary
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`injunction requires movant to establish irreparable harm and balance of the
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`hardships). Genentech further seeks to redact confidential information regarding
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`the timing of Amgen’s decision to launch. This evidence is necessary to establish
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`the district court’s error in determining that the timing of Genentech’s preliminary-
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`injunction motion showed a lack of irreparable harm.
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`This Court previously granted Genentech’s unopposed motion to exceed the
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`confidential marking limits for its Fed. R. App. P. 8 motion for an injunction
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`pending appeal. ECF No. 10 (granting ECF No. 7). Genentech seeks to mark
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`substantially the same type of information as confidential here.
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`- 3 -
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`Case: 19-2156 Document: 18 Page: 4 Filed: 07/26/2019
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`B.
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`The Extensive Redactions Are Necessary At This Stage Of The
`Proceeding.
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`Genentech acknowledges that its redactions are not minimal. Almost all of
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`the documents produced in this case have been produced under a protective order
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`entered before the district court, and Genentech requires Amgen’s consent to
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`disclose their content. Genentech reached out to Amgen in an attempt to reduce
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`the redactions in this brief but did not receive a response prior to finalizing its
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`brief. Therefore, out of an abundance of caution, Genentech has redacted all the
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`information it believes Amgen will regard as confidential, based on the redactions
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`it has proposed before the district court.
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`As before, Genentech is committed to ensuring meaningful public access to
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`the extent permitted by its obligations under the protective order. Should the Court
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`consider these redactions too extensive, Genentech is willing to work with Amgen
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`to reduce them and file a revised public version of its brief at a later time.
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`Genentech reached out to counsel for Amgen about this motion. Amgen did
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`not respond prior to the filing of this motion, and Genentech does not know
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`whether it plans to oppose.
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`For the foregoing reasons, Genentech respectfully requests that the Court
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`grant its motion to exceed the maximum word count for confidentiality
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`designations by 293 words, and to redact a total of 308 unique words.
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`- 4 -
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`
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`Case: 19-2156 Document: 18 Page: 5 Filed: 07/26/2019
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`Respectfully submitted,
`
`
`
`/s/ William F. Lee
`WILLIAM F. LEE
`ANDREW J. DANFORD
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`60 State Street
`Boston, MA 02109
`(617) 526-6000
`
`Attorneys for Plaintiff-Appellant
`Genentech, Inc.
`
`ROBERT J. GUNTHER JR.
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`7 World Trade Center
`250 Greenwich Street
`New York, NY 10007
`(212) 230-8800
`
`DARALYN J. DURIE
`DURIE TANGRI LLP
`217 Leidesdorff Street
`San Francisco, CA 94111
`(415) 362-6666
`
`
`July 26, 2019
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`- 5 -
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`
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`Case: 19-2156 Document: 18 Page: 6 Filed: 07/26/2019
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`
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`CERTIFICATE OF INTEREST
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`Counsel for Plaintiff-Appellant Genentech, Inc. certifies the following:
`
`1.
`
`The full name of every party or amicus represented by me is:
`
`Genentech, Inc.
`
`2.
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`The names of the real party in interest represented by me is:
`
`Not applicable
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`All parent corporations and any publicly held companies that own 10
`3.
`percent or more of the stock of the party or amicus curiae represented by me are:
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`Genentech, Inc. is a wholly-owned subsidiary of Roche Holdings Inc.
`Roche Holdings Inc.’s ultimate parent, Roche Holdings Ltd, is a publicly
`held Swiss corporation traded on the Swiss Stock Exchange. Upon
`information and belief, more than 10% of Roche Holdings Ltd’s voting
`shares are held either directly or indirectly by Novartis AG, a publicly held
`Swiss corporation.
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`The names of all law firms and the partners or associates that
`4.
`appeared for the party or amicus now represented by me in the trial court or agency
`or are expected to appear in this court (and who have not or will not enter an
`appearance in this case) are:
`
`WILMER CUTLER PICKERING HALE AND DORR LLP: Timothy Cook, Robert J.
`Gunther Jr., William F. Lee, Jason H. Liss, Mark D. McBriar, Helena
`Million-Perez, Kevin S. Prussia, Rana Sawaya, Nancy L. Schroeder
`
`DURIE TANGRI LLP: Adam R. Brausa, Daralyn J. Durie, Eneda Hoxha, Eric
`C. Wiener
`
`MCCARTER & ENGLISH, LLP: Alexandra M. Joyce, Michael P. Kelly,
`Daniel M. Silver
`
`WILLIAMS & CONNOLLY LLP: David I. Berl, Thomas S. Fletcher, Paul B.
`Gaffney, Teagan J. Gregory, Kathryn S. Kayali, Charles L. McCloud,
`Jonathan S. Sidhu, Kyle E. Thomason
`
`
`
`
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`Case: 19-2156 Document: 18 Page: 7 Filed: 07/26/2019
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`
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`The title and number of any case known to counsel to be pending in
`5.
`this or any other court or agency that will directly affect or be directly affected by
`this court’s decision in the pending appeal:
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`Genentech, Inc. v. Amgen, Inc., No. 18-cv-924-CFC (D. Del.)
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`Dated: July 26, 2019
`
`
`
`
`
`/s/ William F. Lee
`WILLIAM F. LEE
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`60 State Street
`Boston, MA 02109
`(617) 526-6000
`
`
`
`
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`Case: 19-2156 Document: 18 Page: 8 Filed: 07/26/2019
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`
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`CERTIFICATE OF COMPLIANCE
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`Pursuant to Fed. R. App. P. 27(d) and 32(g), the undersigned hereby certifies
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`that this motion complies with the type-volume limitation of Circuit Rule 27(d).
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`1.
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`Exclusive of the accompanying documents as authorized by Fed. R.
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`App. P. 27(a)(2)(B) and the exempted portions of the response as provided by Fed.
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`R. App. P. 27(d)(2) and 32(f), the motion contains 715 words.
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`2.
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`The motion has been prepared in proportionally spaced typeface using
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`Microsoft Word 2010 in 14 point Times New Roman font as provided by Fed. R.
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`App. P. 32(a)(5)-(6). As permitted by Fed. R. App. P. 32(g), the undersigned has
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`relied upon the word count feature of this word processing system in preparing this
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`
`
`/s/ William F. Lee
`WILLIAM F. LEE
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`60 State Street
`Boston, MA 02109
`(617) 526-6000
`
`certificate.
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`July 26, 2019
`
`
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`
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`Case: 19-2156 Document: 18 Page: 9 Filed: 07/26/2019
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`
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`CERTIFICATE OF SERVICE
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`I hereby certify that, on this 26th day of July, 2019, I filed the foregoing
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`with the Clerk of the United States Court of Appeals for the Federal Circuit via the
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`CM/ECF system, which will send notice of such filing to all registered CM/ECF
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`
`
`
`
`/s/ William F. Lee
`WILLIAM F. LEE
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`60 State Street
`Boston, MA 02109
`(617) 526-6000
`
`users.
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`July 26, 2019
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