A Blog About Intellectual Property Litigation and the District of Delaware


RGA
The Honorable Richard G. Andrews

Judge Andrews Draws Clear Line on ANDA Inducement Claim

Andrew E. Russell, June 22, 2020
Inducement ANDA

Pill Bottle
Sharon McCutcheon, Unsplash

Judge Andrews today granted a rare Rule 12(c) motion in an ANDA action, entering judgment against the plaintiffs on their inducement claim based on the pleadings alone.

The method claim at issue requires administering a drug "from about 3 hours to about 1 hour" before a colonoscopy.

The accused product's label includes instructions to administer the drug "start[ing] approximately 5 hours prior to [a] colonoscopy," and then to "drink at least three 8-ounce cups . . . of clear liquids . . . at least 2 hours before" the procedure.

Judge Andrews held that those allegations—even if true—cannot show inducement of infringement, even if in practice some amount of infringement would occur. …

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"Sandbagging" and the District of Delaware

Andrew E. Russell, June 3, 2020
Litigation Legal Writing

Sandbags
ideadad, Unsplash

In an R&R this week, Magistrate Judge Burke flatly declined to consider a "critical[]" argument raised for the first time in a reply brief:

In their reply brief, Defendants made one other argument, which they failed to raise in their opening brief . . . . (D.I. 37 at 9 (“Critically, neither of these manuals refer to the named defendants in this case[.]”)) Because this argument could have and should have been raised in the opening brief, it has been waived, and so the Court will not consider it here. See McKesson Automation, Inc. v. Swisslog Italia S.p.A., 840 F. Supp. 2d 801, 803 n.2 (D. Del. 2012); LG Display Co., Ltd. …
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Judge Andrews Rejects Footnote "Incorporating" Eight Pages of Prior Briefing

Andrew E. Russell, May 29, 2020
Litigation Legal Writing

Judge Andrews today rejected a portion of a defendant's objections to an R&R because the defendant set forth its objections in "a footnote, which purport[ed] to include about eight pages of the earlier briefing." Sapp et al v. Industrial Action Services, LLC et al, No. 19-912-RGA, at 10 (D. Del. May 29, 2020) (emphasis added).

He held—perhaps not surprisingly—that this "is an insufficient objection." Id.

That said, he did sustain the same defendant's objections to other portions of Magistrate Judge Burke's R&R, although he called the underlying legal issue a "close call." Id. at 8.

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