NOVEN PHARMACEUTICALS v. WATSON LABORATORIES, INC. et al

Filing 116

OPINION. Signed by Judge Dennis M. Cavanaugh on 5/6/13. (jd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

NOVEN PHARMACEUTICALS, INC..

Hon. Dennis M. Cavanaugh

Plaintiff,

OPINION
Civil Action No. 1 1-cv-5997 (DMC)(MF

WATSON LABORATORIES, INC., and
WATSON PHARMACEUTICALS, INC.,:
Defendants.

DENNIS M. CAVANAUGH, U.S.D.J.
This matter comes before the Court upon Motion of Plaintiff/Counterclaim Defendant
Noven Pharmaceuticals. Inc. (‘Noven”) for Reconsideration of a portion of the Court’s
December 27, 2012 Markrnan Opinion and January 4, 2013 Amended Opinion pursuant to Local
Civil Rule 7.1 (i). Pursuant to Fed. R. Civ. P. 78, no oral argument was heard, After carefully
considering the submissions of the parties, and based upon the following, it is the finding of this
Court that Noven’s Motion for Reconsideration is denied.

I. BACKGROUND
At the request of Noven and Defendant/Counterclaim Plaintiffs Watson Laboratories.
Inc.,

and

Watson Pharmaceuticals, Inc.. (collectively “Watson”), a Markman hearing,

PU1’SUant

to

Local Patent Rule 4.5, was held before this Court on December 6, 2012. The parties sought the
Couit s inteipretation of four disputed terms in U S Patent No 6 210 705 (the

705 patent )

and U.S. Patent No. 6,348,211 (the “211 patent”) (collectively the “patents-in-suit”),

The

patents-in-suit are directed to the Daytrana® transdermal patch. which provides a topical
application of the drug methyiphenidate, for the treatment of attention deilcit hyperactivity
disorder C’ADHD”). These disputed terms considered by the Court are: (1)”substantially zero
order kinetics;” (2)wherein the proportion of methylphenidate:silicone adhesive:acrylic adhesive
(wt % dry) is about 5-30:0-70:0-70, respectively;” (3) “wherein the adhesive includes an acrylic
which is a nonfunctional or minimally functional polymer” and; (4) “wherein the composition
comprises no more than about 5 wt % of acid functional monomers”! wherein acid functional
monomers are present in an amount of no more than about 5 wt
specifying “no more than about I wt

%“).

%“

(similar issue for claims

After considering the parties’ written and oral

arguments, the Court set forth its construction of the disputed terms in its December 27, 2012
Markman Opinion (ECF No. 85) and January 4, 2013 Amended Opinion (ECF No, 91)
(collectively the “Markman Opinions”).
Noven filed the instant Motion for Reconsideration of a portion of the Markman Opinions
and an accompanying Moving Brief (‘Nov. Br.”) on January 7. 2013. (ECF No. 94). Specifically.
Noven seeks reconsideration of the Court’s interpretation of the second term:

“.

.

.

about

.

.

.

0-

70%.” Watson filed an Opposition Brief on January 22, 2013 (‘Watson Opp,”). Noven, with
permission from this Court, filed a short Reply Brief to Watson’s Opposition Brief on January
29, 2013. (ECF No. 103). The matter is now before this Court.

II. STANDARD OF REVIEW

Motions for reconsideration in this District are governed by Local Civil Rule 7.1 (i).

2

Local Rule 7.1(i) provides that a party may file a motion for reconsideration “within ten (10)
business days after entry of the Order or Judgment on the original motion by the Judge or
Magistrate Judge.” A motion pursuant to Local Rule 7.1(i) may be granted only if(1) an
intervening change in the controlling law has occurred; (2) evidence not previously available has
become available; or (3) it is necessary to correct a clear error of law or prevent manifest
injustice. Database Am., Inc. v. Bellsouth Adver, & Pub. Corp., 825 F. Supp. 1216, 1220 (D.N.J.
1993); see also North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194. 1218 (3d Cir.
1995). Such relief is “an extraordinary remedy” that is to be granted “very sparingly.”

S NL

Indus, Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996). Local Rule
7. 1(i) does not contemplate a recapitulation of arguments considered by the Court before
rendering its original decision. g Bermingham v. Sony Corp. Of Am., Inc., 820 F. Supp. 834,
856 (D.N.J, 1992). affd, 37 F.3d 1485 (3d Cir. 1994). Tn other words, a motion for
reconsideration is not an appeal. It is improper on a motion for reconsideration to “ask the court
to rethink what it ha[s] already thought through rightly or wrongly.” Oritani Say. & Loan Ass’n
-

v. Fidelity & Deposit Co., 744 F. Supp. 1311, 1314 (D.N.J. 1990)).

IlL DISCUSSION
As to the second term

‘.

.

.

about

.

.

.

0-70%,” Noven argues that the Court erroneously

limited the term to rounding error, which Noven contends, is contrary to case law and is
inconsistent with the admissions and arguments made by Watson at the Markman hearing,
(Noven Br. 1). The Court finds that the arguments that Noven advances in its Moving Brief and

3

Reply Briefs’ do not comport with any of the three recognized bases for reconsideration in the
Third Circuit. Noven again relies on Cohesive Techs., Inc. v. Waters Corp., 543 F,3d 1351, 1368
(Fed. Cir. 2008). a case previously submitted to this Court during the Markman briefing and
considered by this Court in reaching the decision espoused in the Markman Opinions. Cohesive
requires that “about” must be interpreted in its technologic and stylistic context.” See Cohesive,
543 F.3d at 1368 (citing Pall Corp. v. Micron Separations. Inc., 66 F.3d 1211. 121 7-1 8 (Fed. Cir.
1995)). Here, the Court’s Amended Markman Opinion relied on the intrinsic record as support
for construing “0-70” to mean 0-70 subject to rounding errors. Again, the patent speciflcation
“uses integers in 1% incremenets to refer to the percentages of each component of overall drug
composition.” (See ECF No. 91. Amended Markman Opinion, pg 9-10 (citing 21 1 patent. col. 8.
1.26-col, 10, Examples 1-29)). While the specification does disclose some examples that “show
compositions with 80% acrylic adhesive” and “90% acrylic adhesive.” those compositions were
not claimed. (Id., pg. 1 0). Accordingly, as the Court previously stated in the Amended Markman
Opinion, the placement of the word “about” in front of the range “0-70.’ does allow

some

additional range, i.e., rounding decimals to whole numbers, however, the term “about” “does not
allow the 0-70 range of acrylic adhesive present to be modified to include at least 0-80.”

(.. pg.

10).

The Court would also like to note that Noven wrote the Court on Janaury 28, 2013 (ECF
No. 101), seeking permission to submit a short reply brief for purposes of addressing, among
other things, the case Viskase Corp. v. American National Can Co., 261 F.3d 1316 (Fed. Cir.
2011. letter. However, the bulk of Noven’s Reply Brief simply re-hashed old argument, and little
space was spent addressing the Viskase case.
4

IV. CONCLUSION
For the foregoing reasons, Noven’s Motion for Reconsideration is denied. An appropriate
Order accompanies this Opinion.

Dennis M. Cavanaugh, U.J.
Date:
Orig.:
cc:

June’, 2013
Clerk
Hon. Mark Falk, U.S.M.J.
All Counsel of Record
File