Judge Sleet Agrees to Handle Markman at Trial in ANDA Case
February 3, 2016
Publication| Intellectual Property
In Bayer Pharma AG v. Alembic Pharmaceuticals Limited, C.A. No. 15-832-GMS (D. Del. Jan. 7, 2016), the parties submitted competing scheduling proposals in an ANDA case. The plaintiffs requested that any claim construction issues be addressed in the context of trial or post-trial briefing. The plaintiffs contended that claim construction issues were already handled in a previous case, and the current schedule in a soon-to-be-consolidated case contemplated addressing claim construction at trial or through post-trial briefing. The defendant responded that the parties should first exchange a list of claim terms/phrases for construction with proposed constructions before notifying the Court whether a claim construction hearing was necessary. Judge Sleet adopted the plaintiffs’ proposal.
Analysis: Even in ANDA cases, it is rare for the Court to handle Markman during trial, so this decision suggests a new procedure in certain cases.