No. 19–1451 In the Supreme Court of the United States __________ SANOFI-AVENTIS DEUTSCHLAND, GMBH, PETITIONER v. MYLAN PHARMACEUTICALS INC., RESPONDENT __________ ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT __________ BRIEF IN OPPOSITION TO CERTIORARI __________ DOUGLAS H. CARSTEN STEFFEN N. JOHNSON Wilson Sonsini Counsel of Record Goodrich & Rosati, P.C. RICHARD TORCZON 12235 El Camino Real ADAM W. BURROWBRIDGE San Diego, CA 92130 Wilson Sonsini (858) 350–2300 Goodrich & Rosati, P.C. 1700 K Street, N.W. Washington, DC 20006 (202) 973–8800
[email protected] Counsel for Respondent QUESTIONS PRESENTED 1. Whether the Federal Circuit correctly conclud- ed that Sanofi, by failing to plead or otherwise raise a nonjurisdictional Appointments Clause challenge that was pleaded and briefed by dozens of other par- ties and was the subject of extensive public commen- tary, in any brief or at any time until a letter filed two months after oral argument in that court, forfeit- ed such a challenge to the underlying Patent Trial & Appeal Board ruling at issue. 2. Whether the Federal Circuit correctly affirmed the Patent Trial and Appeal Board’s fact-bound con- clusion that Sanofi’s patents were obvious because the purported invention—adding a nonionic surfac- tant to impede insulin glargine molecules from ag- gregating during storage—simply applied a known solution to a known insulin problem. ii RELATED PROCEEDINGS The following proceedings are directly related to the case: Mylan Pharms. Inc. v. Sanofi-Aventis Deutschland GMBH, IPR2017-01526 (P.T.A.B.), final written decision entered December 12, 2018.