On Friday, Chief Judge Connolly issued an order in the lead-up to an ANDA bench trial compelling the plaintiff to reduce its number of asserted claims by 75% to 4 claims, or face consequences:
ORAL ORDER: WHEREAS, the parties filed the proposed pretrial order (D.I. 225) on May 10, 2022; WHEREAS, the bench trial in this case is 24 days away, and, according to the pretrial order, Plaintiffs are still asserting 15 claims across eight patents . . . ; and WHEREAS, Plaintiffs' assertion of 15 claims across eight patents at this juncture makes clear that Plaintiffs have yet to focus adequately on the relative strength of their various infringement claims, the limited resources of this Court, the caseload of this Court, and the fact that the judge in this case, like any human being, has finite perceptive, retentive, and cognitive abilities; NOW THEREFORE, at Wilmington on this Thirteenth day of May in 2022, IT IS HEREBY ORDERED that if Plaintiffs do not narrow their case before noon on May 19, 2022 to four asserted claims, the Court will issue its trial opinion in due course as its caseload allows and will not entertain any application by Plaintiffs for injunctive relief before the Court issues its trial opinion.
The Court is in effect ordering the plaintiff to drop 4 patents from the case, as 4 claims allows for a maximum of 4 of the 8 asserted patents.
The Court leaves how to interpret "in due course as its caseload allows" to the reader. But I think it's safe to guess that if the plaintiff doesn't cut back, it probably won't see a decision quickly following the completion of briefing.
This order is consistent with Chief Judge Connolly's recently-amended form scheduling order's statement that "[t]he Court will limit the number of claims and prior art references asserted at trial" in ANDA cases. It's good to have a data point—4 asserted claims across 8 patents.
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