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Caesar Rivise’s Claim Construction Prevails in Markman Decision of NJ District Court

Posted on Jul 17, 2015 in News

In a July 15, 2015 Markman decision, U.S. District Judge Stanley R. Chesler reaffirmed his preliminary claim construction that “size 00 or less” in U.S. Patent No. 8,563,032 means “precisely size 00 or less” capsule, excluding the larger size 00el capsule.

Roxane Laboratories, Inc. sued our clients, Camber Pharmaceuticals, Inc. and InvaGen Pharmaceuticals, Inc., for patent infringement. The claims of the patent-in-suit cover a calcium acetate product in a “size 00 or less” capsule. Camber and InvaGen’s product is a size 00el, an elongated larger size than a size 00. Roxane argues that “size 00 or less” encompasses both size 00 and size 00el.

In the Decision, Judge Chesler reviewed Roxane’s argument that “size 00 or less” is a technical term requiring the Court to look beyond the intrinsic record. Roxane argued that Teva Pharms. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015) required the court to look outside the intrinsic record, but Judge Chesler disagreed, stating that Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005), which emphasizes the primacy of the intrinsic evidence of record, is still good law.

The court found that the meaning of “size 00 or less” was unambiguous in light of the intrinsic record and there was no need to resolve ambiguities by examining extrinsic evidence. Judge Chesler stated that claim construction in this matter is “fairly simple and straightforward” and one “cannot transform legal analysis about the meaning or significance of the intrinsic evidence into a factual question simply by having an expert testify on it.”

The court therefore found that Camber and InvaGen’s calcium acetate product is a size 00el and not encompassed by Roxane’s patent claims to “size 00 or less.”

Camber and InvaGen are represented by Caesar Rivise attorneys Robert S. Silver, Salvatore Guerriero, David B. Gornish and Pei-Ru Wey.

The case is Roxane Laboratories, Inc. v. Camber Pharmaceuticals, Inc., No. 2:14-cv-04042-SRC-CLW, in the U.S. District Court for the District of New Jersey.

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