Six in limine motions are denied prior to bench trial
UCB, Inc., et al. v. KV Pharmaceutical Company, Civil Action No.08-223-JJF, March 9, 2010.
Farnan, J. Plaintiffs’ three in limine motions and defendant’s three in limine motions are all denied.
The disputed technology relates to pharmaceutical dosage forms that provide a modified release of methylphenidate for the treatment of attention deficit hyperactivity disorder. Plaintiff’ request that the court preclude defendant’s newly-asserted on-sale bar defense is denied because plaintiffs have failed to show any actual harm. Plaintiffs’ motion to preclude a non-infringement argument is denied because the court finds the defense was timely asserted even if the precise argument was not provided. Plaintiffs are entitled to rely on a supplemental expert report of Dr. Byrn in the absence of a showing of prejudice. The assertions contained in the report are consistent with prior statements and was entered to address a summary judgment motion. The parties further seek to limit the proof as to the date of the invention. The patent has the burden of production to establish that the invention predated the filing of the application, and the burden of proof is on the party challenging the patent. The two dates are at issue and will require proof at trial. Defendant argues that plaintiffs’ use of the F2 similarity factor to evaluate infringement is improper. Plaintiffs first raised the intent to rely on this proof in an expert report, and it does not conflict with the court’s claim term “approximately.” The arguments regarding the probative value of this evidence does not warrant exclusion of the test altogether.
