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Judge Andrews to allow defendants’ evidence regarding commercial success at trial

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In a recent Memorandum Order, Judge Richard G. Andrews considered defendants’ request to “show that the suboxone film has not achieved commercial success.” Reckitt Benckiser Pharmaceuticals Inc., et al. v. Watson Laboratories Inc., et al., C.A. No. 13-1674-RGA (D. Del. Dec. 15, 2015). Judge Andrews first noted that “Plaintiffs are not claiming commercial success, but are asserting other secondary factors of nonobviousness.” Judge Andrews also noted that “[t]he absence of objective evidence is a neutral factor.” Judge Andrews explained that “marketplace failure could, under the right circumstances, be a ‘negative factor,’” as it “could rebut (in a roundabout way) ‘long-felt need.’” While Judge Andrews “was doubtful that Defendants [can] show marketplace failure,” or “even have a good shot at making commercial results a neutral factor,” Judge Andrews nevertheless found that “Defendants have to decide how to allocate their time. “ Accordingly, Judge Andrews concluded that “if Defendants believe the proffered . . . evidence [regarding commercial success] is a good use of their time, I will allow it.” Judge Andrews reached this conclusion despite the fact that “Plaintiffs unilaterally withdrew their commercial success expert, and Defendants’ expert was to respond to that now foregone evidence.” Judge Andrews did “not see Plaintiffs being unfairly prejudiced by allowing Defendants to put on their evidence.”

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