Cadence Pharmaceuticals Inc. et al. v. Paddock Laboratories et al

Filing 482

MEMORANDUM ORDER - denying 479 MOTION for Reconsideration re 472 Memorandum Opinion filed by Exela PharmSci, Inc., Exela Pharma Sciences LLC, Exela Pharmsci Inc., Exela Holdings Inc.. Signed by Judge Leonard P. Stark on 12/27/13. (mdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELA WARE

CADENCE PHARMACEUTICAL, INC.
and SCR PHARMATOP,
Plaintiffs,

v.

C.A. No. 11-733-LPS

EXLEA PHARMA SCIENCES, LLC;
EXELA PHARMASCI, INC.; and
EXELA HOLDING, INC.,
Defendants.
MEMORANDUM ORDER
At Wilmington this 27th day of December, 2013:

IT IS HEREBY ORDERED that:

1.

Defendants Exela Pharma Sciences, LLC, Exela PharmSci, Inc., and Exela

Holdings, Inc. (collectively, "Exela") have moved moved for reconsideration of the Court's
November 14,2013 post-trial Memorandum Opinion (D.L 472), to the extent it concluded there
was no motivation to combine the prior art cited by Exela to invalidate the asserted claims of the
'218 patent (D.l. 479). Exelas's motion for reconsideration is DENIED.
2.

Pursuant to Local Rule 7.1.5, a motion for reconsideration should be granted only

"sparingly." The decision to grant such a motion lies squarely within the discretion of the district
court. See Dentsply Int'l, Inc. v. Kerr Mfg. Co., 42 F. Supp. 2d 385, 419 (D. Del. 1999);
Brambles USA, Inc. v. Blocker, 735 F. Supp. 1239, 1241 (D. Del. 1990). These types of motions

are granted only if the court has patently misunderstood a party, made a decision outside the

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adversarial issues presented by the parties, or made an error not of reasoning but of apprehension.
See Schering Corp. v. Amgen, Inc., 25 F. Supp. 2d 293, 295 (D. Del. 1998); Brambles, 735 F.
Supp. at 1241. "A motion for reconsideration is not properly grounded on a request that a court
rethink a decision already made." Smith v. Meyers, 2009 WL 5195928, at *1 (D. Del. Dec. 30,
2009); see also Glendon Energy Co. v. Borough ofGlendon, 836 F. Supp. 1109, 1122 (E.D. Pa.
1993). It is not an opportunity to "accomplish repetition of arguments that were or should have
been presented to the court previously." Karr v. Castle, 768 F. Supp. 1087, 1093 (D. Del. 1991).
A party may seek reconsideration only if it can show at least one of the following: (i) there has
been an intervening change in controlling law; (ii) the availability of new evidence not available
when the court made its decision; or (iii) there is a need to correct a clear error of law or fact to
prevent manifest injustice. See Max's Seafood Cafe ex rei. LouAnn, Inc. v. Quinteros, 176 F.3d
669, 677 (3d Cir. 1999). In no instance should reconsideration be granted if it would not result in
amendment of an order. See Schering Corp., 25 F. Supp. 2d at 295.
3.

Exela has failed to show that the requirements for reconsideration are met here.

Exela's only contention is that "recent [November 2013] statements made to the PTO by the
patentee, SCR Pharmatop (,Pharmatop'), contradict" the Court's finding that reducing dissolved
oxygen in the prior art '222 patent formula would not be useful because "[o]xidation does not
cause paracetamol to degrade." (0.1.479) (quoting OJ. 472 at 23) The Court's finding,
however, was that oxidation is neither the "major route" nor "primary reason" that paracetemol
degrades. In context, it is clear that the Court did not find (as Exela wrongly asserts) that
paracetemol (also known as acetaminophen) "does not degrade in the presence of oxygen." (D.I.

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479 at 4)1 More importantly, there is nothing "new" in the statement Pharmatop made to the
PTa - that is, that the "key breakthrough of the '222 patent invention was the discovery by the
inventors that the degradation of acetaminophen involves first an oxidative process followed by
hydrolysis" (DJ. 479 Ex. 1 at 10) (emphasis added) - as largely the same statement appears in
the trial record, including in Plaintiffs expert's testimony (Tr. at 1224-25, 1323-24). Indeed, the
same expert's report is cited in the very statement relied on by Exela in its motion for
reconsideration, as is the '222 patent itself (at col. 10, lines 41-43), which was also, obviously,
part of the trial record. The "new" statement by Pharmatop to the PTa is, at most, cumulative of
evidence already before the Court. 2 Furthermore, lack of motivation was not the sole basis on
which the Court found Exela failed to meet its burden to invalidate the '218 patent; granting
reargument would be inappropriate because it would not result in a chan e in the Court's order
denying Exela's claim that the '218 patent is inv .. (See D.l.1J6)

~r~
TA TES DISTRICT JUDGE

'See D.l. 480 at 3 (explaining that at trial Plaintiffs expert, Dr. Edmund Elder, "testified
that Dr. Palmieri's [prior art] papers addressed the wrong problem, because they discussed
pyrogallo, which is directly susceptible to oxidation, while acetaminophen is first subject to
hydrolysis and then its hydrolysis degradation product (p-aminophenol) is, in turn, subject to
further degradation by way of oxidation").
The Court notes that there now appears to be some discrepancy as to whether, for
acetaminophen, hydrolysis occurs first, followed by oxidation - as Dr. Elder testified at trial- or,
instead, oxidation occurs first, followed by hydrolysis - as Pharmatop told the PTa in
November. Regardless of the order of these steps, however, Exela has provided no persuasive
basis for the Court to reconsider its finding that oxidation is not the primary or major cause of
degradation of acetaminophen, in contrast to the major role oxidation plays with respect to
degradation of pyrogallo.

2This is true even if, as Exela suggests, what is "new" is not necessarily the substance of
the statement to the PTO, but the fact that the statement was made to the PTO, rendering it
admissible as an admission of a party opponent. (D.L 479 at 6)
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