United States District Court, D. Delaware
GALDERMA LABORATORIES L.P., GALDERMA S A., and NESTLE SKIN HEALTH S.A., Plaintiffs,
TEVA PHARMACEUTICALS USA, INC., Defendant.
B. Blumenfeld, Jeremy A. Tigan, MORRIS, NICHOLS, ARSHT &
TUNNELL LLP, Wilmington, DE; Jamil N. Alibhai, Michael C.
Wilson, Daniel E. Venglarik, Kelly P. Chen, Jordan C.
Strauss, MUNCK WILSON MANDALA, LLP, Dallas, TX; Attorneys for
W. Shaw, Karen E. Keller, Nathan R. Hoeschen, SHAW KELLER
LLP, Wilmington, DE; Leora Ben-Ami, Thomas F. Fleming,
Christopher T. Jagoe, Ashley L.B. Ross, Justin Bova, KIRKLAND
& ELLIS, LLP, New York, NY; Noah Frank, KIRKLAND &
ELLIS, LLP, Washington, D.C.; Attorneys for Defendant.
ANDREWS, U.S. DISTRICT JUDGE.
before the Court is the issue of claim construction of a term
in U.S. Patent No. 10, 206, 939 ("the '939
patent"). The Court has considered the Parties'
Joint Claim Construction Brief. (D.I. 36).
filed the instant action on February 19, 2019, alleging
infringement of the '939 patent. (D.I. 1). The patent
relates to methods and compositions for topical treatment of
rosacea with ivermectin. The parties dispute a term recited
in claims 8, 9, 20, 21, and 22 of the '939 patent. (D.I.
36 at 1-2).
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) (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)
(alteration in original). 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 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
(internal quotation marks omitted).
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 (citations and internal quotation
marks 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.
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 (internal quotation marks 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.
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 and internal quotation marks omitted).
CONSTRUCTION OF DISPUTED TERMS
The '939 Patent
"wherein the subject has no adverse reaction,
[wherein/and] the adverse reaction is skin burning ...