Allergan, Inc. et al v. Revance Therapeutics, Inc. et al

Filing 262

MEMORANDUM ORDER: The motion for reargument and reconsideration (D.I. 218 ) is DENIED. Signed by Judge Richard G. Andrews on 11/14/2023. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

ALLERGAN, INC.,
ALLERGAN PHARMACEUTICALS IRELAND
UNLIMITED COMP ANY, and
ALLERGAN USA, INC.
Plaintiffs,
Civil Action No. 21-1411-RGA

V.

REV ANCE THERAPEUTICS, INC. and
AL THEA, INC. d/b/a AJINOMOTO BIOPHARMA SERVICES,
Defendants.

MEMORANDUM ORDER
Before the Court is Revance ' s 1 motion for reargument and reconsideration (D.I. 218) on a
claim construction dispute I resolved after a Markman hearing. The disputed term is "clarified
culture." (D.I. 211 ). The Parties have briefed the issue. (D.I. 218, 238). For the reasons discussed
below, I deny the motion.

I.

BACKGROUND
The parties submitted a Joint Claim Construction Brief (D.I. 141), and subsequently

narrowed the issues in advance of the hearing. (D.I. 162; D.I. 167). I heard oral argument on June
28, 2023 . One of the terms the parties sought to construe was "clarified culture," which appears in
two of the asserted claims of U. S. Patent No. 7,354,740 ("the ' 740 patent"). (D.I. 141 at 12-2 1). I

1

For simplicity, I refer to Defendants as "Revance. "
1

construed "clarified culture" to mean "fermentation culture from which gross impurities have been
removed." (D.I. 211 at 7-10).
Revance now moves for reargument and reconsideration of that construction. (D.I. 218).
II.

RULE 59(e) LEGAL STANDARD
The purpose of a motion for reconsideration is to "correct manifest errors of law or fact or

to present newly discovered evidence." Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d
Cir. 1999). To succeed on such a motion, a party must demonstrate one of the following: "(1) an
intervening change in the controlling law; (2) the availability of new evidence that was not
available when the court [issued its order]; or (3) the need to correct a clear error of law or fact or
to prevent manifest injustice." Id. A motion for reargument/reconsideration is not an appropriate
vehicle to reargue issues that the court has already considered and decided. See Justice v. Attorney
Gen. of Del., 2019 WL 927351, at *2 (D. Del. Feb. 26, 2019); Brambles USA, Inc. v. Blocker, 735

F. Supp. 1239, 1240 (D. Del. 1990).
III.

DISCUSSION
Revance argues that there are two related errors with my construction. (D.I. 218 at 1). First,

Revance contends that I misapprehended the disclosure of the '740 patent pertaining to acid
precipitation. (Id.). Second, Revance states that based on my misapprehension, I did not consider
the '740 patent as a whole in determining that acid precipitation was not disavowed. (Id. at 1-2).
I note that in the original Markman briefing, Revance wrote about five and a half pages
(D.I. 141 at 14-18, 20-21) arguing for a construction for which it is no longer arguing. In those
pages, there were three paragraphs (on pages 17-18 & 21) making the disclaimer argument that
Revance now advances. Needless to say, with ten pages for reargument, Revance now cites
additional passages in the specification, some of which I did not cite in my opinion.
Notwithstanding Revance's lack of focus in the Markman briefing, it was clear to me at the
2

Markman hearing what Revance's best argument was. I thus permitted Revance to provide a
revised construction, which it did (D.I. 171), consistent with that best argument.
I understand Revance's present arguments. I understood them at the Markman hearing and
when I issued the claim construction opinion. Thus, there is no reason to reconsider them based
on the argument that I misapprehended them. Revance's citation to a few additional passages in
the specification changes nothing.
IV.

CONCLUSION
For the reasons stated above, the motion for reargument and reconsideration (D.I.

218) is DENIED.
IT IS SO ORDERED this

~

ti--

day of November 2023 .

3