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Magistrate Judge Burke issues report and recommendation construing claims relating to dermatological topical gel.

Magistrate Judge Burke recently issued a report and recommendation construing claims relating to a low-viscosity gel composition that operates as a “delivery system” for pharmaceutical ingredients in the treatment of skin disorders. See Medicis Pharmaceutical Corp. v. Actavis Mid Atlantic LLC, C.A. No. 11-409-LPS-CJB (D. Del. June 12, 2012). The “delivery system” was described as follows: “through the use of a ‘lightly cross-linked polyacrylic acid polymer[],’ which has a low viscosity relative to its concentration in aqueous solutions . . . the gel composition offers two principal advantages: (1) more appealing cosmetic characteristics, such as a reduction in a ‘sticky’ feel or residue; and (2) more accurate application through improved flow and pourability.” Id. at 3.

Magistrate Judge Burke recommended the adoption of the parties’ agreed-upon construction of the following claim terms, finding that they were consistent with the intrinsic record:

— “for a period of time sufficient to improve the skin disorder” construed to mean “over a course of treatment of sufficient duration to improve the skin disorder
— “base to adjust pH.” construed to mean “a basic compound that can be used to adjust pH.”
Also recommended were the following constructions of disputed terms:

— “lightly cross-linked polyacrylic acid polymer” construed to mean “a cross-linked polymer of acrylic acid with a viscosity of less than about 15,000 cP, where the polymer is in a 0.5% solution at pH 7.5, as measured by a Brookfield viscometer at 20 rpm”.

— “container” as recited in “a container that accurately administers a portion of the composition” construed to mean “a container that has a sufficiently small orifice tip to dispense quantities of the low-viscosity gel composition in accordance with treatment instructions”
— “container” as recited in “a container from which drops are accurately administered” construed to mean “a container that has a sufficiently small orifice tip to dispense generally spherical quantities of the low-viscosity gel composition in accordance with treatment instructions”
UPDATED: Judge Stark adopted Judge Burke’s Report and Recommendation on July 16, 2012 after neither party filed an objection. Medicis Pharma. Corp. v. Actavis Mid Atlantic LLC, C.A. No. 11-409-LPS-CJB (D. Del. Jul. 16, 2012).


Medicis Pharmaceutical Corp. v. Actavis Mid Atlantic LLC, C.A. No. 11-409-LPS-CJB (D. Del. June 12, 2012).

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