Judge Andrews Strikes Motion for Summary Judgment

December 19, 2017

Publication| Intellectual Property

In Janssen Pharmaceutica, N.V. v. Mylan Pharmaceuticals, Inc., No. 15-760-RGA-SRF (D. Del. Nov. 1, 2017), a Hatch-Waxman litigation, Judge Andrews struck the defendants’ motion for summary judgment of non-infringement. Judge Andrews stated that it is his practice not to permit motions for summary judgment in Hatch-Waxman cases without leave. The defendants argued that the scheduling order did not prohibit the motion for summary judgment, but the Court disagreed, stating that the defendants should have sought to include a provision in the scheduling order expressly permitting such motions or otherwise brought a request to the Court’s attention before moving.

Key Point: In the District of Delaware, the judges typically will not permit motions for summary judgment in bench trials, absent express permission from the Court.

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