Mosaic ImmunoEngineering is a nanotechnology-based immunotherapy company developing therapeutics and vaccines to positively impact the lives of patients and their families.
Message: Complainants Motions ITC
(footnotes not copied). Please note that one of the exhibits filed with this renewed motion is a copy of TPL's Voluntary Petition for BK. It states assets at $500,001 to 1 million whereas liabilities are stated at $50,000,001 to $100 Million
MEMORANDUM IN SUPPORT OF COMPLAINANTS’ RENEWED MOTION TO AMEND THEIR AMENDED TENTATIVE LIST OF HEARING WITNESSES AND MOTION FOR LEAVE FOR RESPONDENTS TO TAKE THE DEPOSITION OF GLORIA FELCYN AFTER THE FACT DISCOVERY CUT-OFF In Order No. 21, the ALJ permitted Complainants to renew their motion to show good
cause for adding Ms. Gloria Felcyn to their Amended Tentative Witness list.1 Complainants
appreciate the opportunity afforded by the Court, and submit that there are at least three bases for “good cause” to amend their witness list. 1. Complainants Merely Seek to Amend Their TentativeWitness List.
As an initial matter, Complainants do not seek a modification of the procedural schedule.
Rather, Complainants’ request is to amend their prior tentative witness list, as such list was
specifically defined in Order No. 15: January 18, 2013 was the date by which the parties were
required to “[f]ile tentative list of witnesses a party will call to testify at the evidentiary hearing.”
Order No. 15, (emphasis added). Unless Complainants’ are permitted to modify their tentative witness list – under justifiable circumstances, as discussed below – the word “tentative” in Order
No. 15 would have no meaning.
2. Complainants Provided Additional PDS Financial Records Before the
Discovery Cut-Off (But After Tentative Witness Lists) in a Good Faith Effort
to Meet and Confer with Respondents.
Second, after the submission of tentative witness lists – but before the discovery cut-off –
Respondents’ specifically requested that Complainants produce additional documents that related
to their domestic industry assertions. Acting in good faith during the meet and confer process,
Complainants agreed to produce six years of balance sheets and profit and loss statements (P&L
statements) (collectively, the “PDS financial documents”) for Complainant PDS before the
discovery cut-off. Recognizing that Respondents would want a deposition witness to testify
about the PDS financial documents, Complainants simultaneously offered Ms. Gloria Felcyn for
deposition.2 Complainant PDS is a joint venture LLC that is jointly owned and controlled by
Complainants TPL and Patriot. Ms. Felcyn is a member of Complainant Patriot’s board and a
forensic accountant. She also has direct knowledge regarding the PDS financial documents.
A more detailed explanation of the meet and confer process may be helpful for the ALJ.
Starting around January 31, 2013, Respondents began to request a number of categories of
documents related to Complainants’ domestic industry assertions. See, e.g., Exh. B. Among
those documents were detailed P&L statements and balance sheets which showed investments
made by Complainant PDS in the MMP licensing program relating to the asserted ’336 patent.
Complainants produced the PDS financial documents on the morning of February 14. See Exh.
C (production e-mails for PAT853_00543865 through PAT853_00543991).
On the same day Complainants produced the PDS financial documents, the parties held a
Discovery Committee Meeting. During the call, Complainants offered to make Ms. Felcyn
available for deposition during the next seven days leading up to the close of fact discovery to
testify about the documents. During that timeframe, Respondents were already in the process of
taking depositions of Complainants’ witnesses in California. Complainants confirmed Ms.
Felycn’s availability with an email after the DCM. See Exh. D.
Complainants contacted Respondents again the next day (February 15) to offer Ms.
Felcyn for deposition before the fact discovery deadline. See Exh. E. However, Respondents
remained silent for five days, delaying any response until February 20—two days before the
close of fact discovery. See Exh. F. It was then – for the first time – that Respondents suggested
that Complainants needed to amend their tentative witness list to include Ms. Felcyn. Id. At that
point, it was too late to schedule Ms. Felcyn’s deposition before the fact discovery deadline, but
Respondents stated they would not oppose a motion by Complainants to amend their tentative
witness list if Complainants agreed to make Ms. Felcyn available for deposition after the
deadline. Id. In reliance on Respondents proposal, Complainants in good faith went back to
obtain additional availability for Ms. Felcyn’s deposition after the close of discovery. However,
Respondents indicated that they would not proceed with the deposition until Complainants filed
their motion to amend their tentative witness list. Complainants filed their first motion shortly
thereafter, on March 4, 2013.
Accordingly, Complainants’ good faith efforts to produce hundreds of additional pages
(and Ms. Felcyn for deposition) – specifically in response to Respondents’ meet and confer
requests after the deadline for tentative witness lists – should constitute “good cause” sufficient
to add Ms. Felcyn to Complainants witness list. To find otherwise would reward Respondents
for delaying their meet and confer requests for those documents until after tentative witness lists
were submitted.
3. Complainant TPL Recently Filed a Chapter 11 Petition, Which Highlights
the Importance of Testimony From Complainants Patriot and PDS
Regarding Their Investments in the Domestic Industry.
The third basis for “good cause” to amend Complainants’ witness list is Complainant
TPL’s recent petition for reorganization under Chapter 11 on March 20, 2013 – well after the
submission of Complainants’ tentative witness list. See Exhibit G. Neither Complainant Patriot,
the Patriot members of Complainant PDS, nor Complainants’ counsel were aware that TPL
would file its Chapter 11 petition until it was filed, and they certainly did not know about it at the
time they produced the PDS balance sheets and offered Ms. Felcyn for deposition.
From the beginning of this Investigation, Complainants have relied primarily on the
domestic investments of Complainant TPL to support their domestic industry based on an
extensive licensing program for the MMP portfolio (including the ’336 patent). Despite TPL’s
Chapter 11 petition, Complainants still believe that their continued reliance on TPL’s
investments alone are sufficient to establish a domestic industry based on licensing. However, in
order to counter any arguments Respondents may make regarding domestic industry as a result
of TPL’s Chapter 11 petition, Complainants must be able to present Patriot and PDS witnesses at
trial who can explain the PDS financial documents.
Ms. Felcyn’s testimony in support of the PDS statements will provide foundation for and
clarify the nature of the investments made by PDS in the MMP licensing program.
Complainants submitted their tentative witness list prior to both TPL’s Chapter 11 petition and
Respondents’ request for documents related to PDS and Patriot’s domestic industry investments.
These events, which were well beyond the control of Complainants Patriot and PDS (and
Complainants’ counsel), make it necessary for Complainants to offer witnesses who can explain
the PDS financial documents. This is especially true because Respondents intend to rely on
expert testimony on domestic industry, which will no doubt address the very PDS financial
documentation that were to be the subject of Ms. Felcyn’s deposition (which Complainants
attempted to schedule before the close of fact discovery, while Respondents resisted scheduling).
Without Ms. Felcyn’s testimony, the Court will be left with one-sided, speculative testimony
from Respondents’ expert. Accordingly, absent leave to amend their tentative witness list,
Complainants will be severely prejudiced at trial.
For all of the reasons set forth above, Complainants respectfully request that their
renewed motion to amend Complainants’ Amended Tentative List of Hearing Witnesses to
include Ms. Gloria Felcyn (and motion for leave for
Respondents to take the deposition of Ms.
Felcyn after the fact discovery deadline) be granted.
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