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Judge Andrews grants defendant’s request to file early motion for partial summary judgment on infringement

Judge Richard G. Andrews recently granted Defendant’s letter request to file an early motion for partial summary judgment in light of the Court’s view that “there is a reasonable possibility that Plaintiff is estopped from asserting that lenalidomide can meet the claim limitations requiring thalidomide under the doctrine of equivalents.”  Andrulis Pharms. Corp. v. Celgene Corp., C.A. No. 13-1644-RGA (D. Del. Feb. 6, 2015).  In its letter request (D.I. 59) defendant argued that “early summary judgment [was] appropriate because Andrulis concede[d] that [the accused product] does not literally infringe and because prosecution history estoppel is a purely legal issue based on indisputable facts that bars Andrulis’s allegation that [the accused product] infringes under the doctrine of equivalents.”  D.I. 59 at 1.  Judge Andrews also cautioned defendant to not file a motion staying discovery pending the Court’s resolution of the partial summary judgment motion because the Court would not use its discretion to grant such a motion.

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