Chief Judge Gregory M. Sleet recently construed the claim terms of U.S. Patent Nos. 5,780,676 and 5,962,731 relating to plaintiff’s Targretin® drug indicated for the treatment of cutaneous T-cell lymphoma. Eisai, Inc. v. Banner Parmacaps Inc., et al., C.A. No. 11-901-GMS (D. Del. July 2, 2013). The Court construed the following terms:
“useful to treat skin cancer”
In construing the terms, the Court rejected defendants’ proposed construction for “co-transfection assay” that was defined through reference to an article published in Science magazine. Id. at. n.1 After the Markman hearing, the defendants submitted a supplemental letter brief proposing a new construction that excluded reference to to the article. Id. The Court agreed with plaintiff that the supplemental brief was untimely, but did not reach the decision on whether it should consider the brief regardless:
The court agrees that the timing of the defendants’ proposed construction comes late in the claim construction process and, without the court granting leave for further briefing, limits the plaintiff’s opportunity to fully respond to the merits of the new proposed construction. However, because the court agrees with the plaintiff’s proposed construction of this term, it does not need to reach a decision on whether the defendants’ second proposed construction should be considered.