United States District Court, D. Delaware
ABBVIE INC. and ABBVIE DEUTSCHLAND GMBH & CO. KG, Plaintiffs,
MYLAN PHARMACEUTICALS INC. and MYLAN LABORATORIES LTD., Defendants.
Mary B. Graham, Esq., Derek J. Fahnestock, Esq., Stephen J. Kraftschik, Esq., MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, DE; Barbara R. Rudolph, Esq. (argued), Jonathan R. Davies, Esq. (argued), Amanda K. Murphy, Esq., Corinne Miller LaGosh, Esq., Mindy L. Ehrenfried, Esq., FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP, Washington, DC; Robert C. Stanley, Esq., FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP, Atlanta, GA. Attorneys for Plaintiffs.
Richard L. Horwitz, Esq., David E. Moore, Esq., Bindu A. Palapura, Esq., POTTER ANDERSON & CORROON LLP, Wilmington, DE; Timothy H. Kratz, Esq. (argued), George J. Barry III, Esq., Brie L.B. Buchanan, Esq., Meghan M. Rachford, Esq., McGUIREWOODS LLP, Atlanta, GA; Cedric C.Y. Tan, Esq., McGUIREWOODS LLP, Washington, DC. Attorneys for Defendants.
RICHARD G. ANDREWS, District Judge.
Pending before the Court is the issue of claim construction for the disputed terms found in U.S. Patent Nos. 7, 148, 359 ("the '359 patent"); 7, 364, 752 ("the '752 patent"); 8, 268, 349 ("the '349 patent"); 8, 399, 015 ("the '015 patent"); 8, 470, 347 ("the '347 patent"); and 8, 691, 878 ("the '878 patent").
AbbVie initiated the present action against Mylan on June 14, 2013, alleging infringement of U.S. Patent Nos. 6, 232, 333 ("the '333 patent"); 7, 432, 294 ("the '294 patent"); and 7, 141, 593 ("the '593 patent"). (D.I. 1). On January 9, 2014, AbbVie filed its first amended complaint, adding infringement claims for the '359 patent, the '752 patent, the '349 patent, the '015 patent, and the '347 patent. (D.I. 36). On September 25, 2014, AbbVie filed a new lawsuit asserting infringement of the '878 patent (C.A. No. 14-1236, D.I. 1), which was consolidated into the present litigation. (D.I. 82). The parties filed a joint stipulation of dismissal for the '593 and '294 patents on January 22, 2015 (D.I. 128), and for the '333 patent on January 30, 2015. (D.I. 137). In the patents remaining, AbbVie has asserted the following claims: the '359 patent: claims 1, 2, and 4-7; the '752 patent: claims 11-13, 17, 18, 20-22, 26, and 27; the '015 patent: claims 18-22, 24-29, and 31; the '349 patent: 1-5 and 7; the '878 patent: 1-8 and 13-17; and the '347 patent: 1-3, 5, 6, 8-10, 20, 21, and 23. The Court has considered the parties' joint claim construction brief (D.I. 168), joint appendices (D.I. 169 & 170), and held oral argument on May 22, 2015. (D.I. 177). Prior to oral argument, on May 20, 2015, the parties submitted a joint letter informing the Court that they had agreed upon constructions for the terms "solid dispersion" and "composition." (D.I. 173). After the Markman hearing, the parties submitted letters with proposed alternative constructions for the term "self-emulsifying." (D.I. 178 & 179).
"It is a bedrock principle of patent law that the claims of a patent define the invention to which the patentee is entitled the right to exclude." Phillips v. AWHCorp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en bane) (internal quotation marks omitted). "[T]here is no magic formula or catechism for conducting claim construction.' Instead, the court is free to attach the appropriate weight to appropriate sources in light of the statutes and policies that inform patent law.'" SoftView LLC v. Apple Inc., 2013 WL 4758195, at *1 (D. Del. Sept. 4, 2013) (quoting Phillips, 415 F.3d at 1324). When construing patent claims, a court considers the literal language of the claim, the patent specification, and the prosecution history. Markman v. Westview Instruments, Inc., 52 F.3d 967, 977-80 (Fed. Cir. 1995) (en bane), ajf'd, 517 U.S. 370 (1996). Of these sources, "the specification is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term." Phillips, 415 F.3d at 1315 (internal quotation marks and citations omitted).
"[T]he words of a claim are generally given their ordinary and customary meaning.... [Which is] the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application." Id. at 1312-13 (internal quotation marks and citations omitted). "[T]he ordinary meaning of a claim term is its meaning to [an] ordinary artisan after reading the entire patent." Id. at 1321 (internal quotation marks omitted). "In some cases, the ordinary meaning of claim language as understood by a person of skill in the art may be readily apparent even to lay judges, and claim construction in such cases involves little more than the application of the widely accepted meaning of commonly understood words." Id. at 1314 (internal citations omitted).
When a court relies solely upon the intrinsic evidence-the patent claims, the specification, and the prosecution history-the court's construction is a determination oflaw. See Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831, 841 (2015). The court may also make factual findings based upon consideration of extrinsic evidence, which "consists of all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises." Phillips, 415 F.3d at 1317-19 (internal quotation marks and citations omitted). Extrinsic evidence may assist the court in understanding the underlying technology, the meaning of terms to one skilled in the art, and how the invention works. Id. Extrinsic evidence, however, is less reliable and less useful in claim construction than the patent and its prosecution history. Id.
"A claim construction is persuasive, not because it follows a certain rule, but because it defines terms in the context of the whole patent." Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998). It follows that "a claim interpretation that would exclude the inventor's device is rarely the correct interpretation." Osram GmbH v. Int'l Trade Comm'n, 505 F.3d 1351, 1358 (Fed. Cir. 2007) (internal quotation marks and citation omitted).
III. AGREED-UPON CONSTRUCTIONS
1. "substantially pure" (as used in claims 1, 2, and 4 of the '359 patent)
a. Agreed-upon construction: Refers to amorphous ritonavir which is greater than about 90% pure, which means that the amorphous ritonavir does not contain more than about 10% of any other compound and, in particular, does not contain more than about 10% of any other form of ritonavir.
2. "amorphous ritonavir" (as used in claims 1, 2, and 4-7 of the '359 patent, and claims 1-5 and 7-9 of the '752 patent)
a. Agreed-upon construction: The solid physical form of ritonavir characterized by ...