GlaxoSmithKline LLC et al v. Teva Pharmaceuticals USA Inc.

Filing 456

LETTER OPINION re 455 . An Oral Argument is set for 10/26/2017 at 10:00 AM in Courtroom 6B before Judge Leonard P. Stark. Signed by Judge Leonard P. Stark on 7/27/2017. (etg)

UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
LEONARD P. STARK

U.S. COURTHOUSE
844 KING STREET
UNIT26
WILMINGTON, DE 19801-3556

UNITED STATES DISTRICT JUDGE

July 27, 2017

Elizabeth M. Flanagan
Fish & Richardson, P.C.
222 Delaware Avenue
Wilmington, Delaware 19899

RE:

Karen E. Keller
Shaw Keller LLP
1105 North Market Street
Wilmington, Delaware 19801

GlaxoSmithKline v. Teva Pharmaceuticals USA, Inc.,
C.A. No. 14-878-LPS

Dear Counsel:
I have completed my review of the parties' identification of issues on which each intends to
seek post-trial relief. (D.I. 455) As a result, I have formed tentative views as to how any motions,
including those challenging the jury verdict, are likely to come out. Those inclinations have informed
my decision as to how this matter should proceed. I thought it would be beneficial for you to know
my tentative views of the proposed motions, in the hope that this will make briefing and resolution of
those motions more efficient for you and for me.
As to GSK's post-trial motions, I am likely to award pre-judgment and post-judgment interest,
should any damages award survive motions practice. Appropriate costs will likely also be awarded to
GSK, again on the same condition as just noted. I am unlikely to enhance damages pursuant to 35
U.S.C. § 284 based on the jury's finding of willfulness. Nor has this case appeared to meet the criteria
for an "exceptional case" within the meaning of 35 U.S.C. § 285 - hence, ifl am to decide this issue
prior to the case proceeding to an appeal, I am unlikely to award GSK its attorneys' fees.

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Turning to Teva's post-trial motions, I am inclined to agree with Teva that no jury could
reasonably find that 100% of physicians were actually induced to infringe by Teva's actions, as
opposed to other factors that were well supported by the trial record. I am presently uncertain as to the
nature of the relief, if any, that would be appropriate for Teva ifI ultimately conclude that I do agree
with Teva on this point. My current belief is that it was correct to permit GSK to attempt to prove
inducement on the theory that physicians as a class were induced to infringe.
I am inclined to disagree with Teva that no reasonable juror could have concluded that Teva's
actions induced even a single physician to administer Teva's carvedilol to a patient for use in an
infringing manner.
I am also inclined to disagree with Teva that GSK's "ultimate argument" - "based upon Teva's
having failed to affirmatively state to physicians that Teva's carvedilol was not approved for treatment
of CHF" - "does not constitute an affirmative act of inducement" as a matter oflaw. (D.I. 455 at 2)
As I am inclined to agree with Teva that a reasonable juror could not have found that "100% of
GSK's alleged lost sales were induced by Teva" (id.), it is possible that Teva will be entitled to some
relief with respect to the jury's damages award, at least to the extent that GSK's damages theory was
based on the assumption that 100% of the infringing uses were induced by Teva's actions.
I am further inclined to agree with Teva that no reasonable juror could have concluded that
Teva's Skinny Label constituted an affirmative act that encouraged direct infringement.
I have no present inclination as to the three additional arguments made by Teva in paragraph 6
of the status report. (See id. at 2-3)
Finally, I am not inclined to grant judgment as a matter oflaw or a new trial on the question of
anticipation by the Kelly reference.
Given my tentative views expressed above, I believe it would be best for the parties and the
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Court to resolve the intended post-trial motions before scheduling the bench trial on equitable
estoppel, unpatentable subject matter, indefiniteness, and improper dependency. I have further
decided that while some increase in the Court's standard page limits is warranted, the Court does not
require briefing as extensive as Teva has requested.
Accordingly, the parties shall, if they wish, file post-trial motions and briefing according to the
following schedule:
•Motions are to be filed on August 25, 2017
•Opening briefs, not to exceed a total of 30 pages per side, due August 25, 2017
•Answering briefs, not to exceed a total of 30 pages per side, due September 22, 2017
•Reply briefs, not to exceed a total 15 pages per side, due October 6, 2017 1
•Oral argument, one hour per side, October 26, 2017 at 10:00 a.m.

I conclude by emphasizing that the views expressed in this letter do not constitute an order but
are merely my present inclinations, based principally on my recollection of the trial and the parties'
limited post-trial submissions. I will only be able to make final decisions after receiving the
forthcoming briefing and conducting oral argument.

ely,

f

Honora e Leonard P
ark
United States District Judge
District of Delaware

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Thus, no matter how many motions are filed, the Court should not receive more than a total of
150 pages of briefing (30 + 30 + 15 for each side).
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