AAIPharma Litigation LLC. v. Kremers Urban, Co., et al
Filing
245
MEMORANDUM OPINION AND ORDER re: 232 MOTION for Summary Judgment of Non-Infringement filed by All Defendants, 203 MOTION for Summary Judgment of Invalidity Under 35 U.S.C. 101 filed by All Defendants, 237 MOTION for Summary Judgme nt of Anticipation and Lack of Enablement filed by All Defendants. For the reasons that follow, defendants' motions for summary judgment of non-infringement and of invalidity due to anticipation and lack of enablement are denied. Defenda nts' motions for summary judgment of non-infringement and summary judgment of invalidity due to anticipation and lack of enablement are therefore denied. Judgment is reserved on defendants' motion for summary judgment of invalidity under 35 U.S.C. § 101. The pretrial order remains due March 18, 2013. Trial shall begin April 22, 2013. (Signed by Judge Denise L. Cote on 3/14/2013) (tro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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AAIPHARMA LITIGATION LLC,
02 Civ. 9628 (DLC)
Plaintiff,
MEMORANDUM OPINION
AND ORDER
-v-
KREMERS URBAN DEVELOPMENT CO., et al.,
f
Defendants.
"/
, !i
-------------------------------------- X
DENISE COTE, District Judge:
This is an action for patent infringement brought by
AaiPharma Litigation LLC ("Aai") against defendants Kremers Urban
Development Co., et al.
( collectively,
"Schwarz Pharma")
asserting claims in U.S. Patent Nos. 6,268,385 and 6,326,384
"patents-in-suit") related to the drug omeprazole.
(the
Before the
Court is Schwarz Pharma's third round of summary judgment
briefing.
Defendants' first motion for summary judgment, in
which defendants argued that Aai lacked standing and that one of
the patents-in-suit was unenforceable, was denied in a Memorandum
& Order of July 30, 2012.
Defendants' second motion for summary
judgment, in which defendants argued that the patents-in-suit
were anticipated by prior art and therefore invalid, was denied
in a Memorandum & Order of October I, 2012.
Schwarz Pharma now seeks summary judgment in three
additional motions, arguing (1) that its production process does
not infringe the patents-in-suit,
(2) that the patents-in-suit
are invalid due to anticipation and non-enablement, and (3) that
the patents-in-suit are invalid under 35 U.S.C.
§
101.
For the
reasons that follow, defendants' motions for summary judgment of
non-infringement and of invalidity due to anticipation and lack
of enablement are denied.
Summary judgment may not be granted unless all of the
submissions taken together "show that there is no genuine issue
as to any material fact and that the movant is entitled to
judgment as a matter of law."
Fed. R. Civ. P. 56(c).
The moving
party bears the burden of demonstrating the absence of a material
factual question, and the court must view all facts "in the light
most favorable" to the non-moving party in making this
determination.
2008) i
Holcomb v. Iona ColI., 521 F.3d 130, 132 (2d Cir.
see also Eastman Kodak Co. v. Image Technical Serv., Inc.,
504 U.S. 451, 456
(1992).
A material fact is one that "might
affect the outcome of the suit under the governing law," and a
genuine issue exists as to a material fact when "the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
Having reviewed the parties' briefing and the factual
record, it is clear that genuine issues of material fact remain
to be decided at trial, including:
(1)
Whether Aai's expert testimony establishes that the 6/5
2
isomer ratio in the dry blended, unmicronized portion
of the omeprazole in Schwarz Pharma's production
process is essentially maintained.
(2)
Whether the formulation process described in the prior
art disclosure of International Application WO 98/50019
("Chen U
)
excludes aggressive techniques like grinding
and sieving and necessarily maintains omeprazole's 6/5
isomer ratio.
(3)
Whether the patents-in-suit provide sufficient detail
regarding the procedures to be used in the dry blending
process to enable a person of ordinary skill in the art
to produce omeprazole without changing its 6/5 isomer
ratio.
Defendants' motions for summary judgment of non-infringement
and summary judgment of invalidity due to anticipation and lack
of enablement are therefore denied.
Judgment is reserved on
defendants' motion for summary judgment of invalidity under 35
U.S.C.
§
101.
The pretrial order remains due March 18, 2013.
Trial shall begin April 22, 2013.
Dated:
New York, New York
March 14, 2013
United
3
Judge
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