Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Purdue Pharma L.P. v. Alvogen Pine Brook LLC

United States District Court, D. Delaware

February 23, 2018

PURDUE PHARMA L.P., PURDUE PHARMACEUTICALS L.P., THE P.F. LABORATORIES, INC., and GRUNENTHAL, GmbH, Plaintiffs,
v.
ALVOGEN PINE BROOK LLC, and ACTAVIS LABORATORIES FL, INC., Defendants.

          ORDER CONSTRUING THE TERMS OF U.S. PATENT NOS. 9, 675, 610 ("THE '610 PATENT") AND 9, 750, 703 ("THE '703 PATENT").[[1]]

         After considering the submissions of the parties and hearing oral argument on the matter, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that, as used in the asserted claims of U.S. Patent Nos. 9, 675, 610 ("the '610 Patent") and 9, 750, 703 ("the '703 Patent"):

1. The term "layer encasing the core" in the '703 patent is construed to mean "one or more materials enclosing a space or surrounding the core."[2]
2. The term "average molecular weight... as measured by correlation to viscosity" in the '703 patent is construed to mean "the average of the molecular weights . . . based on rhetological measurements."[3]
3. The term "one or more viscosity-increasing agents in a quantity such that an aqueous extract of a total content of the dosage form when comminuted and combined with 10 ml of water at 25° C forms a gel that can be drawn up into and injected back out of a hypodermic needle having a diameter of 0.9 mm, into a further quantity of water, wherein threads of the gel injected from said needle remain visible to the naked eye in said further quantity of water at 37°C" in the '610 patent is construed to mean "one of more viscosity-increasing agents in a quantity such than an aqueous extract of a total content of the dosage form when comminuted and combined with 10 ml of water at 25° C forms a gel that can be drawn up into and injected back out of a hypodermic needle having a diameter of 0.9 mm, into a further quantity of water, wherein threads of the gel injected from said needle can be seen with the naked eye when introduced into said further quantity of water at 37° C and do not immediately disappear."[4]

---------

Notes:

[1] All docket citations refer to Civil Action No. 15-687-GMS. The abbreviation "Tr." refers to the transcript from the Markman Hearing on February 13, 2018, D.I. 312. The phrase "First Phase Construction" refers to the first Marhnan Hearing held on November 30, 2016 (D.I. 121) and Markman Order entered on March 10, 2017. (D.I. 178.)

[2] The parties' dispute centers on whether (1) "layer" requires a single material or "one or more" materials to encase the core; and (2) whether "encasing" requires "surrounding" or "covering" the core. (D.I. 270 at 3.) After First Phase Construction, the court granted Plaintiffs' Motion for Reconsideration (D.I. 207) and rejected Defendants' (D.I. 217) proposed construction of "shell encasing the core" from Patent No. 8, 808, 740 ("the '740 Patent") as "a layer or surface enclosing a space or surrounding an object." (D.I. 207 at n.l.) The specification of the '703 Patent discloses that the preferred inner and outer regions "are configured as an inner core (e.g., a compressed tablet) and a shell encasing the core (e.g., a compression coating)." '703 Patent at 11:3-6. Specifically, the specification states that:

[t]he shell of the dosage form can be formed, e.g., by compression coating, molding, spraying one or more layers onto the core, dipping one or more layers onto the core or a combination thereof.

Id. at 11:50-55. The specification further explains that in some embodiments an "optional coat" may be "alternatively or additionally applied as an intermediate layer between the core and the compression coating." '703 Patent at 17:31-35. Claim 34, for instance, describes "a layer" as "a second portion of hydrocodone bitartrate dispersed in a second matrix material." Id. at 50:20-22. The prosecution history provides additional support that the claim allows for more than one layer describing layers that "each contain[] multiple ingredients." WO 2008/011169, Table 1. The court, therefore, agrees with Plaintiffs that "layer" means "one or more materials, " which form the layer.

Next, Plaintiffs argue that adopting Defendants' proposed construction where "encasing" means "surrounding" ignores that the layer is proximate to the core. (D.I. 280 at 5.) The court agrees. Defendants have applied the First Phase Construction of "encasing" to its construction without additional support. (D.I. 271 at 13.) Similarly, Plaintiffs' construction of "encasing" fails to acknowledge that the specification does not differentiate between "encasing" depending on whether the structure "encasing" the core is a "shell" or another "layer." '703 Patent at 11:51-55. The court, therefore, declines to adopt either parties' construction of "encasing." Instead, for the reasons above and stated in D.I. 178 and D.I. 207, the court construes the claim term to mean "one or more materials enclosing a space or surrounding the core." See Tr. of Columbia Univ. v. Symantec Corp., 811 F.3d 1359, 1370 (Fed. Cir. 2016).

[3] The parties' dispute centers on (1) "average molecular weight" and (2) "as measured by correlation to viscosity." Markman Hr'g Tr. 4:7-8, 13:1-5. Defendants argue that the "average molecular weight" should have its plain and ordinary meaning of "the average of the molecular weights." (D.I. 178); Markman Hr'g Tr. 9:20-21. Specifically, Defendants argue that "average" and "approximate" are not interchangeable because the specification distinguishes between approximate and average rheological measurements. Markman Hr'g Tr. 11:20-23. Plaintiffs argue that the inventor equated "average molecular weight" to "approximate molecular weight" by using the terms interchangeably. '703 Patent at 12:9-23, 8:30-37. The court disagrees with Plaintiffs. (D.I. 178, n.18.) During First Phase Construction, the court determined that there was insufficient guidance in the specification to construe the term "average molecular weight" beyond its plain meaning. (D.I. 178 atn.19.) Likewise, the '703 Patent specification uses "average molecular weight, " "molecular weight, " and "approximate molecular weight." '703 Patent at 8:23-38, 12:12. For the reasons stated above and in D.I. 178, the court adopts Defendant's construction of "average molecular weight."

Second, the court construes "as measured by correlation to viscosity" to mean "based on rheological measurements." (D.I. 178 at n. 18.) The phrase "correlation to viscosity" is only found in claims 2, 32, and 38 of the Patent. The specification discloses that "polyethylene oxide is considered to have an approximate molecular weight of varying amounts when it has a viscosity falling within a particular range when using a particular test. '703 Patent at 15:58-16:31. Part of the specification lays out the definitions of the terms used therein and states:

The term "high molecular weight polyethylene oxide (PEO)" is defined for purposes of the present invention as having an approximate molecular weight of at least 1, 000, 000, based on ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.