Motion to strike section 112 challenge is denied
Smithkline Corporation v. Barr Pharmaceuticals, Inc., et al., Civ. No. 08-112- SLR, September 23, 2009.
Robinson, J. Plaintiff’s motion to strike defendant’s section 112 written description defenses and portions of expert report addressing those defenses is denied.
The Court finds that the defense was timely pled, and that the evidentiary basis for the claim rests in large part in plaintiff’s control. Plaintiff has the opportunity to respond in the context of expert discovery, and to the extent there is additional factual discovery needed concerning those with skill in the art at the relevant time, it can forward those requests to the court and defense counsel.
