In a recent Order, Judge Richard G. Andrews denied Plaintiffs’ request to file a motion for summary judgment of infringement in an ANDA action. Impax Laboratories Inc., et al. v. Lannett Holdings Inc., et al., C.A. No. 14-984-RGA (D. Del. Feb. 29, 2016).
In opposition to Plaintiffs’ request, Defendants argued that “Plaintiffs’ response to Defendants’ discovery is barely started.” Judge Andrews found, however, that while that may be true, the issue for infringement is “(1) construction of the claims, which has already been done, and (2) comparison of the claims with the accused ANDA product.” (internal citation omitted). Judge Andrews thus found that “Plaintiffs’ allegedly deficient discovery responses seem to be a makeweight argument.”
However, Defendants also asserted that there is a “genuine factual dispute over the composition of the accused ANDA product.” Judge Andrews found that expert reports, “which will not be finished until late May at the earliest, will be necessary to decide whether there is, or is not, a dispute, and, if there is, what the evidence will show about who has the better argument.” Judge Andrews was thus “dubious about how helpful a summary judgment motion might be.” Judge Andrews also noted that “the schedule for this case really does not have sufficient time built into it for orderly summary judgment practice.” Judge Andrews thus concluded that “I do not believe that summary judgment practice would be efficient or productive,” and ultimately denied Plaintiffs’ request.