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Protective Order Violations in High-Stakes Patent Litigation Results in Sanctions and Prosecution Bar

In a recent high-stakes patent litigation case, a protective order, filed on November 22, 2022, was put in place to safeguard confidential information during the course of the legal proceedings.  The defendant asserted that the plaintiff’s legal team had struggled to adhere to the protective order’s strict guidelines.

The first alleged violation involved a trial transcript containing sealed proceedings, which was sent from an associate at the plaintiff’s law firm, Williams & Connolly, to an associate at Morrison & Foerster, who is representing the plaintiff in separate IPR proceedings. This disclosure took place on July 18, 2023.

The second incident revolves around the plaintiff’s closing slide no. 298, which contained the defendants’ confidential Yesafili formulation. An associate at Williams & Connolly sent this slide to the plaintiff’s in-house counsel and to outside counsel in Canada. From there, the slide was disseminated to other members of the plaintiff’s in-house counsel team and to various international law firms.

The third and perhaps most concerning alleged violation involves the defendants’ BLA and other confidential information. The plaintiff’s in-house counsel sent this sensitive data to the Liad Whatstein firm in Israel, which handles patent litigation.

In light of these violations, the district court issued an order outlining its findings and the sanctions to be imposed on the plaintiff. The district court determined that the plaintiff’s actions demonstrated a disregard for their duties under the protective order and an overreliance on the defendants to advance the process for handling unauthorized disclosures.

As a result, the district court directed the plaintiff to:

(1) Confirm with the defendants that all work on Eylea matters for prosecution issues has been transferred away from Liad Whatstein & Co.

(2) Reengage its efforts under the protective order and provide the defendants with all required information within the specified timeline.

(3) Pay reasonable attorneys’ fees and costs incurred by the defendants in connection with the motion related to the protective order violations.

The district court also implemented a prosecution bar for the individuals who had access to the defendants’ confidential information, consistent with the terms of the protective order.  Lastly, the district court revoked one attorney’s access to confidential materials under the protective order due to his role in the dissemination of the defendants’ confidential BLA and other information to unauthorized persons.

The district court’s decisive action in this matter underscores the gravity of protective order violations and the potential consequences for parties found to be in breach.

Regeneron Pharmaceuticals, Inc. v. Mylan Pharmaceuticals Inc., Case No. 1:22-CV61 (KLEEH) (N.D. W.Va. March 26, 2024)


The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or

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