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Delcor Asset Corp. v. Glenmark Pharmaceuticals Ltd.

United States District Court, D. Delaware

October 31, 2018



         Presently before the Court is the issue of claim construction of multiple terms in U.S. Patent Nos. 7, 141, 237 ("the '237 patent") and 7, 374, 747 ("the '747 patent"). I have considered the parties' joint claim construction brief. (D.I. 84). I heard oral argument on October 19, 2018.

         I. BACKGROUND

         On November 15, 2017, Delcor Asset Corp. ("Delcor") and Mylan Pharmaceuticals Inc. ("Mylan") brought this action against Glenmark Pharmaceuticals Ltd. and Glenmark Pharmaceuticals Inc., USA (collectively "Glenmark"), and Stiefel West Coast, LLC ("Stiefel") for infringement of the '237 and '747 patents. This action relates to Abbreviated New Drug Application ("ANDA") No. 210778, filed by Glenmark for approval to market a generic version of the branded product Evoclin. (D.I. 1 ¶ 1). Mylan holds the NDA on Evoclin and Delcor is the exclusive licensee of the '237 and '747 patents. (D.I. 1 ¶¶ 19-20). Stiefel owns the asserted patents but was joined as an involuntary defendant and has taken no position on the issues in this case. (D.I. 1 ¶ 5; D.I. 84 at 8 n.4).


         "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. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (citation 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, 979-80 (Fed. Cir. 1995) (en banc), aff'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.

         "[T]he words of a claim are generally given their ordinary and customary meaning. . . . [This 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. "[T]he ordinary meaning of a claim term is its meaning to [an] ordinary artisan after reading the entire patent." Id. at 1321. "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.

         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 of law. 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. 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) (citation omitted).


         The '747 patent is a continuation of the '237 patent and the specifications are substantively identical. (D.I. 84 at 6 n.3). The '237 patent has four independent claims-claims 1, 28, 32, and 33-all of which are asserted. I believe claim 1 may be considered representative for the purposes of claim construction. The '747 patent has only one independent claim-claim 1.

         Claim 1 of the '237 patent reads:

         1. A topical delivery composition in a pressurized container, said composition comprising:

up to 15% w/w of clindamycin phosphate;
from about 83% to about 97.9% w/w of a quick-breaking foaming agent, wherein said quick-breaking foaming agent comprises a C1-C6 alcohol, a C14-C22 alcohol, water, and a surfactant; and
from about 2% to about 7% w/w of an aerosol propellant selected from the group consisting of a hydrocarbon, a chlorofluorocarbon, dimethyl ether, ...

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