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Vectura Ltd. v. Glaxosmithkline LLC

United States District Court, D. Delaware

March 18, 2019


          Kelly E. Farnan and Christine D. Haynes, RICHARDS, LAYTON & FINGER, P.A., Wilmington, DE; Dominick A. Conde, Christopher P. Borello (argued), Brendan M. O'Malley (argued), and Damien N. Dombrowski (argued), VENABLE LLP, New York, NY, attorneys for Plaintiff.

          Jack B. Blumenfeld and Jeremy A. Tigan, MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, DE; Martin J. Black, Kevin M. Flannery (argued), Robert Ashbrook and Sharon K. Gagliardi, DECHERT LLP, Philadelphia, PA; Blake B. Greene (argued), DECHERT LLP, Austin, TX, attorneys for Defendants.



         Currently pending before the Court are Plaintiffs motion for partial summary judgment of no invalidity by anticipation (D.I. 126) and Defendants' motion for summary judgment of invalidity by lack of enablement. (D.I. 122). The parties have fully briefed the issues. (D.I. 190, 195, 208, 212, 216, 220). The Court heard oral argument on March 4, 2016. (Hr'g Trans.).

         I. BACKGROUND

         Plaintiff Vectura Limited sued Defendants Glaxo SmithKline LLC and Glaxo Group Limited on July 27, 2016 alleging infringement of U.S. Patent Nos. 8, 303, 991 ("the '991 patent") and 8, 435, 567 ("the '567 patent"). (D.I. 1). Plaintiff has narrowed its infringement allegations to claim 3 of the '991 patent and claim 3 of the '567 patent ("the Asserted Claims"). The patents-in-suit "relate to pharmaceutical compositions for inhalation and methods of making them." (D.I. 82 at 1). The asserted claims are dependent claims which cover only compositions where the additive is magnesium stearate. (D.I. 195 at 9).

         On August 10, 2018, the parties made various motions for summary judgment. Plaintiff moved for partial summary judgment of no invalidity by anticipation. (D.I. 126). Defendants moved for summary judgment of non-infringement (D.I. 120) and of invalidity by lack of enablement (D.I. 122). On October 1, 2018, 1 issued my claim construction opinion, and subsequently, the claim construction order. (D.I. 167; D.I. 169). The parties had exchanged expert reports prior to the opinion, and my constructions of the claim terms differed from that of either party. I then permitted supplemental expert discovery between the parties and amended summary judgment briefing. (D.I. 176). The parties have exchanged supplemental expert discovery and amended their previous summary judgment briefing. At oral argument, I denied Defendants' motion for summary judgment of non-infringement. (D.I. 246). I now address the parties' remaining dispositive motions.


         A. Summary Judgment

         "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party has the initial burden of proving the absence of a genuinely disputed material fact relative to the claims in question. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). Material facts are those "that could affect the outcome" of the proceeding, and "a dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 248 (1986)). The burden on the moving party may be discharged by pointing out to the district court that there is an absence of evidence supporting the non-moving party's case. Celotex, 411 U.S. at 323.

         The burden then shifts to the non-movant to demonstrate the existence of a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989). A non-moving party asserting that a fact is genuinely disputed must support such an assertion by: "(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials; or (B) showing that the materials cited [by the opposing party] do not establish the absence ... of a genuine dispute . . .." Fed.R.Civ.P. 56(c)(1).

         When determining whether a genuine issue of material fact exists, the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). A dispute is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-49. If the non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp., 477 U.S. at 322.

         B. Anticipation

         A patent claim is invalid as anticipated under 35 U.S.C. § 102 if "within the four corners of a single, prior art document. . . every element of the claimed invention [is described], either expressly or inherently, such that a person of ordinary skill in the art could practice the invention without undue experimentation." Callaway Golf Co. v. Acushnet Co.,576 F.3d 1331, 1346 (Fed. Cir. 2009) (alterations in original). As with infringement, the court construes the claims and compares them against the prior art. See Enzo Biochem, Inc. v. Appier a Corp.,599 F.3d 1325, 1332 (Fed. Cir. 2010). Anticipation "may be decided on summary judgment if the record ...

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