Reckitt Benckiser Pharmaceuticals Inc. et al v. Watson Laboratories Inc. et al

Filing 375

MEMORANDUM ORDER regarding presentations at the Bench Trial scheduled for 12/17/2015 (see Memorandum Order for further details). Signed by Judge Richard G. Andrews on 12/15/2015. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

RECKITT BENCKISER
PHARMACEUTICALS INC., et al.,
Plaintiffs,

v.

Civil Action No. 13-1674-RGA
Consolidated

WATSON LABORATORIES INC., et al.,
Defendants.

MEMORANDUM ORDER

Defendants want to show that the suboxone film has not achieved commercial success.
Plaintiffs are not claiming commercial success, but are asserting other secondary factors of nonobviousness. "The absence of objective evidence is a neutral factor." Harmon, et al., Patents and
the Federal Circuit, 11th ed., p. 250. I believe that marketplace failure could, under the right
circumstances, be a "negative factor." It could rebut (in a roundabout way) "long-felt need."
Based on the sketchy discussion at the pretrial conference, I am doubtful that Defendants can
show marketplace failure, and, indeed, I am not sure that they even have a good shot at making
commercial results a neutral factor. Defendants have to decide how to allocate their time. Thus,
if Defendants believe the proffered Lawton evidence is a good use of their time, I will allow it.
It is true that Plaintiffs unilaterally withdrew their commercial success expert, and

Defendants' expert was to respond to that now foregone evidence, but I do not see Plaintiffs
being unfairly prejudiced by allowing Defendants to put on their evidence.
/

IT IS SO ORDERED this

11_ day of December 2015.

United States D' strict Judge