RECKITT BENCKISER PHARMACEUTICALS INC. v. WATSON LABORATORIES INC., 13-1674-RGA Consolidated. (2015)
Court: District Court, D. Delaware
Number: infdco20151216b47
Visitors: 7
Filed: Dec. 15, 2015
Latest Update: Dec. 15, 2015
Summary: MEMORANDUM ORDER RICHARD G. ANDREWS , District Judge . 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 non-obviousness. "The absence of objective evidence is a neutral factor." Harmon, et al., Patents and the Federal Circuit, 11 th ed., p. 250. I believe that marketplace failure could, under the right circumstances, be a "negative factor." It could rebut (in a ro
Summary: MEMORANDUM ORDER RICHARD G. ANDREWS , District Judge . 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 non-obviousness. "The absence of objective evidence is a neutral factor." Harmon, et al., Patents and the Federal Circuit, 11 th ed., p. 250. I believe that marketplace failure could, under the right circumstances, be a "negative factor." It could rebut (in a rou..
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MEMORANDUM ORDER
RICHARD G. ANDREWS, District Judge.
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 non-obviousness. "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.
Source: Leagle
