United States District Court, D. Delaware
LEONARD P. STARK UNITED STATES DISTRICT JUDGE.
Magistrate Judge Fallon issued a Report and Recommendation
(D.I. 150) on November 30, 2017, recommending that the Court
adopt certain claim constructions for disputed terms in U.S.
Patent No. 9, 662, 398 ('"398 patent");
on December 14, 2017, Alcon Research, Ltd.
("Alcon") objected to the Report (D.I. 152),
specifically objecting to the recommended constructions of
"native guar, " "nepafenac, " and "a
galactomannan at a concentration of 0.1 to 0.4 w/v %, said
galactomannan selected from the group consisting of guar,
native guar, and hydroxypropyl guar;"
on December 28, 2017, Watson Laboratories, Inc.
("Watson") responded to Alcon's objections
on February 12, 2018, Alcon filed a reply to Watson's
response (D.I. 162);
on February 19, 2018, Watson filed a surreply to Alcon's
reply (D.I. 163);
on February 26, 2018, the Court heard oral argument on the
objections (see D.I. 168) ("Tr.");
the Court has considered the parties' claim construction
disputes addressed in the Report de novo, see St. Clair
Intellectual Prop. Consultants, Inc. v. Matsushita Elec.
Indus. Co., Ltd., 691 F.Supp.2d 538, 541-42 (D. Del.
2010); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3);
THEREFORE, IT IS HEREBY ORDERED that:
Alcon's objections (D.I. 152) to the Report's
construction of the aforementioned terms are SUSTAINED. The
constructions set forth in the Report (D.I. 150) are NOT
adopted. The Court construes the disputed terms as follows:
A. "Native guar, " as used in claims 1, 13, 14, 21,
and 32, is construed to mean "naturally occurring guar,
including such guar which has been processed to make it
suitable for ophthalmic pharmaceutical use, so long as such
guar also lacks the kind of chemical substitutions of the
galactose and mannose groups of its galacatomannan
polysaccharides discussed in the '398 patent at col. 4
B. "Nepafenac, " as used in claims 1, 13-15, and
32, is construed to mean "a known compound having the
having the following structure:
C. "A galactomannan at a concentration of 0.1 to 0.4 w/v
%, said galactomannan selected from the group consisting of
guar, native guar, and hydroxypropyl guar, " as used in
claim 1, is construed to mean "guar, native guar, or
hydroxypropyl guar ...