ABCELLERA BIOLOGICS INC, et al., Case No. 20-cv-08624-JST (VKD)
Plaintiffs, ORDER RE JUNE 17, 2024 v. DISCOVERY DISPUTE RE PLAINTIFFS’ INTERROGATORIES BRUKER CELLULAR ANALYSIS, INC., NOS. 7 AND 9 D efendant. Re: Dkt. No. 249
AbCellera Biologics, Inc. (“AbCellera”) and The University of British Columbia (“UBC”) (collectively, “AbCellera”) and defendant Bruker Cellular (“Bruker Cellular”) (formerly known as Berkeley Lights, Inc.) ask the Court to resolve their dispute concerning the sufficiency of Bruker Cellular’s responses to Interrogatories Nos. 7 and 9. Dkt. No. 249. The Court finds this dispute suitable for resolution without oral argument. Civil L.R. 7-1(b). For the reasons explained below, the Court requires Bruker Cellular to amend its responses to these interrogatories in some respects. In these consolidated actions, AbCellera alleges that Bruker Cellular infringes several patents relating to the use of microfluidic devices for assays that can be applied to the discovery of antibodies for the treatment of disease and methods for isolating antibody sequences of interest.1 1 According to the Second Amended Consolidated Complaint, AbCellera asserts fifteen patents: United States Patent Nos. 10,107,812 (“the ‘812 patent”), 10,274,494 (“the ‘494 patent”), 10,466,241 (“the ’241 patent”), 10,578,618 (“the ’618 patent”), 10,697,962 (“the ’962 patent”), 10,775,376 (“the ’376 patent”), 10,775,377 (“the ’377 patent”), 10,775,378 (“the ’378 patent”), 10,718,768 (“the ’768 patent”), 10,746,737 (“the ’737 patent”), and 10,753,933 (“the ’933 patent”) (collectively, “the ’812 patent family”), and United States Patent Nos. 10,087,408 (“the ’408 See Dkt. No. 254 ¶ 19. Bruker Cellular denies the allegations of infringement and contends that all of the asserted patents are invalid. See Dkt. Nos. 106, 204. In its answer to AbCellera’s allegations of infringement, Bruker Cellular asserts an affirmative defense that the asserted patents are invalid for improper inventorship. See Dkt. No. 204 at 43-44 (third affirmative defense). In its Interrogatory No. 7, AbCellera asks Bruker Cellular to “[i]dentify and describe the legal and factual basis for Bruker’s contention that the Patents-in-Suit are invalid for improper inventorship . . . including by, without limitation, explaining all legal bases for such contentions and identifying all facts, circumstances, and documents supporting, refuting, or relating to Bruker’s contention.” Dkt. No. 249-1 at 6. AbCellera alleges that Bruker Cellular’s infringement of the asserted patents was willful, and that it intentionally induced others to infringe or was willfully blind to the possibility that its acts would cause infringement. See, e.g., Dkt. No. 254 ¶¶ 102, 111 (addressing the ’812 patent). Bruker Cellular denies these allegations. See, e.g., Dkt. No. 204 ¶¶ 77, 86 (addressing the ’812 patent). In its Interrogatory No. 9, AbCellera asks Bruker Cellular to “[i]dentify and describe the dates and circumstances of Bruker’s first awareness and/or knowledge of AbCellera and each of the Patents-in-Suit including by, without limitation, describing communications regarding, and identifying all facts and circumstances relating to, all documents concerning, and the persons most knowledgeable about, Bruker’s first awareness and/or knowledge of AbCellera as a company, AbCellera’s technology and services, each of the patents-in-Suit, and Dr. Carl Hansen’s research at The University of British Columbia.” Dkt. No. 249-1 at 11. AbCellera argues that Bruker Cellular’s responses to Interrogatories Nos. 7 and 9 are incomplete and insufficiently detailed. Dkt. No. 249 at 1-4. With respect to Interrogatory No. 7, Bruker Cellular responds that it intends to amend its response to this interrogatory, but only after AbCellera substantially completes its own document production and responds to Bruker Cellular’s Interrogatory No. 1. With respect to Interrogatory No. 9, Bruker Cellular objects to some aspects 2. The docket indicates that, pursuant to a case management order, plaintiffs have identified 50 claims from seven patents to assert against Bruker Cellular. See Dkt. Nos. 70, 192 at 2, 209 at 8; of the interrogatory and argues that it has fully responded to the remainder. Id. at 4-6. A. Interrogatory No. 7 AbCellera complains that Bruker Cellular’s response to this interrogatory includes “non- responsive, conclusory statements without any of the requested ‘legal and factual bases’ to support Bruker’s contention” about improper inventorship. Id. at 1. Bruker Cellular says that its response is “complete based on discovery provided by Plaintiffs and analysis to date.” Id. at 4. The Court has reviewed Bruker Cellular’s current response to Interrogatory No. 7. The response principally describes the bases for Bruker Cellular’s contention that Dr. Singhal is not an inventor with respect to the ’408 patent. That description does not rely merely on conclusory statements, as AbCellera asserts. See Dkt. No. 249-1 at 7-9. While AbCellera may be correct that the circumstances Bruker Cellular describes are legally insufficient to overcome the presumption that the patent correctly names Dr. Singhal as an inventor, that is a question for determination on the merits—not a discovery matter. Bruker Cellular’s response to Interrogatory No. 7 also contains the following statement: “[T]he documents identified by Plaintiffs related to conception and reduction to practice do not show any inventive contributions at the time of the purported conception by named inventors Hansen or Piret with regard to the ’408, ’936, or ’270 patents, any inventive contributions by named inventor Singhal with regard to the ’936 or ’270 patents, or any inventive contributions by named inventors Hansen, Schrader, Haynes, or Da Costa with regard to the ’962, ’933, ’376, or ’378 patents.” Id. at 9. The Court agrees with AbCellera that this statement is conclusory and does not fairly respond to Interrogatory No. 7. For example, the response does not identify the documents “related to conception and reduction to practice” or the purported date of conception to which Bruker Cellular refers. Moreover, to the extent AbCellera has elsewhere described its position regarding the inventive contributions of these individuals (in response to Bruker Cellular’s Interrogatory No. 1 or otherwise), Bruker Cellular’s response does not address AbCellera’s position. Cellular’s Interrogatory No. 1 concerning conception and reduction to practice. Bruker Cellular must amend its response to AbCellera’s Interrogatory No. 7 no later than 14 days after service of Bruker Cellular’s amended response. B. Interrogatory No. 9 In response to Interrogatory No. 9, Bruker Cellular describes when and how it first became aware of each of the asserted patents. Dkt. No. 249-1 at 12. Bruker Cellular does not describe when and how it first became aware of AbCellera, AbCellera’s technology and services, and Dr. Hansen’s research, although it identifies the “persons most knowledgeable” about those matters and identifies two documents, which is says are the “earliest documents . . . referencing AbCellera.” See id.; Dkt. No. 249 at 3. The parties disagree about whether Bruker Cellular’s awareness of AbCellera, AbCellera’s technology and services, and Dr. Hansen’s research is relevant to AbCellera’s allegations of willful infringement and willful blindness. See Dkt. No. 249 at 3, 6. AbCellera emphasizes that willfulness is assessed based on a totality of the circumstances. Id. at 3. Bruker Cellular responds that its awareness of AbCellera, its technology and services, and Dr. Hansen’s work has little to do with the question of willful infringement, which depends on knowledge of the asserted patents, the first of which issued in 2018. Id. at 6. Bruker Cellular objects to this part of Interrogatory No. 9 on relevance grounds. Id. Willful infringement requires a showing that the accused infringer had a specific intent to i
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ABCELLERA BIOLOGICS INC, et al., Case No. 20-cv-08624-JST (VKD)
Plaintiffs, ORDER RE JUNE 17, 2024 v. DISCOVERY DISPUTE RE PLAINTIFFS’ INTERROGATORIES BRUKER CELLULAR ANALYSIS, INC., NOS. 7 AND 9 D efendant. Re: Dkt. No. 249
AbCellera Biologics, Inc. (“AbCellera”) and The University of British Columbia (“UBC”) (collectively, “AbCellera”) and defendant Bruker Cellular (“Bruker Cellular”) (formerly known as Berkeley Lights, Inc.) ask the Court to resolve their dispute concerning the sufficiency of Bruker Cellular’s responses to Interrogatories Nos. 7 and 9. Dkt. No. 249. The Court finds this dispute suitable for resolution without oral argument. Civil L.R. 7-1(b). For the reasons explained below, the Court requires Bruker Cellular to amend its responses to these interrogatories in some respects. In these consolidated actions, AbCellera alleges that Bruker Cellular infringes several patents relating to the use of microfluidic devices for assays that can be applied to the discovery of antibodies for the treatment of disease and methods for isolating antibody sequences of interest.1 1 According to the Second Amended Consolidated Complaint, AbCellera asserts fifteen patents: United States Patent Nos. 10,107,812 (“the ‘812 patent”), 10,274,494 (“the ‘494 patent”), 10,466,241 (“the ’241 patent”), 10,578,618 (“the ’618 patent”), 10,697,962 (“the ’962 patent”), 10,775,376 (“the ’376 patent”), 10,775,377 (“the ’377 patent”), 10,775,378 (“the ’378 patent”), 10,718,768 (“the ’768 patent”), 10,746,737 (“the ’737 patent”), and 10,753,933 (“the ’933 patent”) (collectively, “the ’812 patent family”), and United States Patent Nos. 10,087,408 (“the ’408 See Dkt. No. 254 ¶ 19. Bruker Cellular denies the allegations of infringement and contends that all of the asserted patents are invalid. See Dkt. Nos. 106, 204. In its answer to AbCellera’s allegations of infringement, Bruker Cellular asserts an affirmative defense that the asserted patents are invalid for improper inventorship. See Dkt. No. 204 at 43-44 (third affirmative defense). In its Interrogatory No. 7, AbCellera asks Bruker Cellular to “[i]dentify and describe the legal and factual basis for Bruker’s contention that the Patents-in-Suit are invalid for improper inventorship . . . including by, without limitation, explaining all legal bases for such contentions and identifying all facts, circumstances, and documents supporting, refuting, or relating to Bruker’s contention.” Dkt. No. 249-1 at 6. AbCellera alleges that Bruker Cellular’s infringement of the asserted patents was willful, and that it intentionally induced others to infringe or was willfully blind to the possibility that its acts would cause infringement. See, e.g., Dkt. No. 254 ¶¶ 102, 111 (addressing the ’812 patent). Bruker Cellular denies these allegations. See, e.g., Dkt. No. 204 ¶¶ 77, 86 (addressing the ’812 patent). In its Interrogatory No. 9, AbCellera asks Bruker Cellular to “[i]dentify and describe the dates and circumstances of Bruker’s first awareness and/or knowledge of AbCellera and each of the Patents-in-Suit including by, without limitation, describing communications regarding, and identifying all facts and circumstances relating to, all documents concerning, and the persons most knowledgeable about, Bruker’s first awareness and/or knowledge of AbCellera as a company, AbCellera’s technology and services, each of the patents-in-Suit, and Dr. Carl Hansen’s research at The University of British Columbia.” Dkt. No. 249-1 at 11. AbCellera argues that Bruker Cellular’s responses to Interrogatories Nos. 7 and 9 are incomplete and insufficiently detailed. Dkt. No. 249 at 1-4. With respect to Interrogatory No. 7, Bruker Cellular responds that it intends to amend its response to this interrogatory, but only after AbCellera substantially completes its own document production and responds to Bruker Cellular’s Interrogatory No. 1. With respect to Interrogatory No. 9, Bruker Cellular objects to some aspects 2. The docket indicates that, pursuant to a case management order, plaintiffs have identified 50 claims from seven patents to assert against Bruker Cellular. See Dkt. Nos. 70, 192 at 2, 209 at 8; of the interrogatory and argues that it has fully responded to the remainder. Id. at 4-6. A. Interrogatory No. 7 AbCellera complains that Bruker Cellular’s response to this interrogatory includes “non- responsive, conclusory statements without any of the requested ‘legal and factual bases’ to support Bruker’s contention” about improper inventorship. Id. at 1. Bruker Cellular says that its response is “complete based on discovery provided by Plaintiffs and analysis to date.” Id. at 4. The Court has reviewed Bruker Cellular’s current response to Interrogatory No. 7. The response principally describes the bases for Bruker Cellular’s contention that Dr. Singhal is not an inventor with respect to the ’408 patent. That description does not rely merely on conclusory statements, as AbCellera asserts. See Dkt. No. 249-1 at 7-9. While AbCellera may be correct that the circumstances Bruker Cellular describes are legally insufficient to overcome the presumption that the patent correctly names Dr. Singhal as an inventor, that is a question for determination on the merits—not a discovery matter. Bruker Cellular’s response to Interrogatory No. 7 also contains the following statement: “[T]he documents identified by Plaintiffs related to conception and reduction to practice do not show any inventive contributions at the time of the purported conception by named inventors Hansen or Piret with regard to the ’408, ’936, or ’270 patents, any inventive contributions by named inventor Singhal with regard to the ’936 or ’270 patents, or any inventive contributions by named inventors Hansen, Schrader, Haynes, or Da Costa with regard to the ’962, ’933, ’376, or ’378 patents.” Id. at 9. The Court agrees with AbCellera that this statement is conclusory and does not fairly respond to Interrogatory No. 7. For example, the response does not identify the documents “related to conception and reduction to practice” or the purported date of conception to which Bruker Cellular refers. Moreover, to the extent AbCellera has elsewhere described its position regarding the inventive contributions of these individuals (in response to Bruker Cellular’s Interrogatory No. 1 or otherwise), Bruker Cellular’s response does not address AbCellera’s position. Cellular’s Interrogatory No. 1 concerning conception and reduction to practice. Bruker Cellular must amend its response to AbCellera’s Interrogatory No. 7 no later than 14 days after service of Bruker Cellular’s amended response. B. Interrogatory No. 9 In response to Interrogatory No. 9, Bruker Cellular describes when and how it first became aware of each of the asserted patents. Dkt. No. 249-1 at 12. Bruker Cellular does not describe when and how it first became aware of AbCellera, AbCellera’s technology and services, and Dr. Hansen’s research, although it identifies the “persons most knowledgeable” about those matters and identifies two documents, which is says are the “earliest documents . . . referencing AbCellera.” See id.; Dkt. No. 249 at 3. The parties disagree about whether Bruker Cellular’s awareness of AbCellera, AbCellera’s technology and services, and Dr. Hansen’s research is relevant to AbCellera’s allegations of willful infringement and willful blindness. See Dkt. No. 249 at 3, 6. AbCellera emphasizes that willfulness is assessed based on a totality of the circumstances. Id. at 3. Bruker Cellular responds that its awareness of AbCellera, its technology and services, and Dr. Hansen’s work has little to do with the question of willful infringement, which depends on knowledge of the asserted patents, the first of which issued in 2018. Id. at 6. Bruker Cellular objects to this part of Interrogatory No. 9 on relevance grounds. Id. Willful infringement requires a showing that the accused infringer had a specific intent to infringe at the time of the challenged conduct. Bayer Healthcare LLC v. Baxalta Inc., 989 F.3d 964, 987 (Fed. Cir. 2021). Mere awareness of a patent is not sufficient. Id. Specific intent for purposes of willful infringement and inducement of infringement may be established by showing that an accused infringer was “willfully blind” in the sense that the accused infringer took “deliberate actions to avoid confirming a high probability of wrongdoing . . . .” Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769 (2011). Bruker Cellular asserts that its knowledge of AbCellera and Dr. Hansen’s research pre-date its knowledge of the asserted patents by a few years, suggesting that these circumstances could not 1 patents. However, AbCellera’s theory is that Dr. Singhal, who later joined Bruker Cellular, knew 2 of Dr. Hansen’s work at UBC and of AbCellera’s development of the patents at issue, and that 3 Bruker Cellular therefore knew (or deliberately avoided confirming the likely possibility) that it 4 was using AbCellera’s patented technology. See Dkt. No. 249 at 3-4. AbCellera is entitled to 5 explore this theory in discovery. 6 Accordingly, Bruker Cellular must amend its response to Interrogatory No. 9 to identify 7 and describe the dates and circumstances of Bruker Cellular’s first awareness or knowledge of 8 AbCellera, AbCellera’s technology and services, and Dr. Hansen’s research at The University of 9 British Columbia. 10 I. CONCLUSION 11 Bruker Cellular must amend its response to Interrogatory No. 7, as directed above, no later 12 than 14 days after service of Bruker Cellular’s amended response to AbCellera’s Interrogatory No. 13 1, unless the parties agree otherwise. Bruker Cellular must amend its response to Interrogatory 14 No. 9, as directed above no later than August 15, 2024, unless the parties agree otherwise. 15 IT IS SO ORDERED. a 16 Dated: July 18, 2024
18 Varajvi®, LaMarche: Virginia K. DeMarchi 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28