Working in patent law for as long as I have, I've developed a fair collection of dictionaries I can turn to when I'm working on a Markman brief and require a bit of support.
(Eds. Note - It's also useful for playing especially cutthroat games of scrabble!)
Perusing these tomes has given me an appreciation for the subtle art of the dictionary and the intense (bordering on worrisome) logophilia of those who create them. I am a particular fan of the OED's practice of including quotations featuring the usage of the word, beginning with the first extant, and showing its varying usages throughout history.
(Eds. Note—I swear, I'm not as lame as this post makes me sound. I just think writing a dictionary would be fun . . . .)
The lesson of todays case, Astellas Pharma Inc. v. Lupin Ltd., C.A. No. 23-819-JFB-CJB, D.I. 200 (D. Del. Apr. 19, 2024) (R&R), is that such artistry is best left for the dictionaries.
The patent in Astellas required treatment with a controlled release formulation "such that the treating is with a reduced food effect." The defendant (opposing a request for preliminary injunction) argued that "reduced" food effect was an indefinite term of degree. In support they pointed to a passage in the specification that seemed to provide several possible definitions for "reduced":
The wording “the effects by food are reduced” as used herein means, for example, a reduction by 10% or more, a reduction by 20% or more in another embodiment, and a reduction by 30% or more in still another embodiment, in comparison with Cmax of a conventional formulation. Alternatively, the term means, for example, a reduction of 10% or more with respect to the rates of decrease of Cmax and AUC in administration after food intake, in comparison with Cmax and AUC in administration in the fasted 15 state, a reduction of 20% or more in another embodiment, and a reduction of 30% or more in still another embodiment.
Astellas at 14 (quoting '451 patent, col. 7:57-67)
Judge Burke found this inconsistency persuasive, noting that ...
