Partial summary judgment granted on invalidity motion
Sepracor Inc. v. Dey, L.P. and Dey, Inc., Civil Action No. 06-113- JJF, September 24, 2009.
Farnan, J. Defendant’s motion for summary judgment on invalidity is granted in part. Plaintiff’s motion for summary judgment of no anticipation is denied.
The patents-in-suit pertain to methods of using the optically pure R(-) isomer of albuterol to treat bronchial disorders while at the same time reducing side effects associated with the use of the racemic mixture of albuterol. Defendant contends that a Great Britain patent specification published in 1972 anticipates the claims of the patents-in-suit. The Court finds that a material question of fact remains as to whether the GB patent discloses R(-) albuterol having a purity within the scope of the claims of the patents-in-suit which precludes summary judgment on the overall issue of anticipation. However, summary judgment is entered on the issue of whether a reduction in side effects is inherent in the use of R(-) albuterol. For the same reasons, plaintiff’s motion for summary judgment of no anticipation is denied.
