`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`BAXTER HEALTHCARE CORPORATION,
`
` Plaintiff,
`
`v.
`
`HOSPIRA, INC. and ORION CORP.,
`
` Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`C.A. No. 18-303-RGA
`
`BAXTER’S MOTION FOR JUDGMENT ON THE PLEADINGS
`
`Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, Plaintiff/Counterclaim
`
`Defendant Baxter Healthcare Corporation (“Baxter”) respectfully moves this Court to enter
`
`judgment on the pleadings in its favor and against Defendants/Counterclaim Plaintiffs Hospira,
`
`Inc. and Orion Corp. (collectively, “Defendants”). The grounds for this motion are set forth more
`
`fully in Baxter’s supporting Opening Brief, filed contemporaneously herewith, and upon the
`
`papers, records, and pleadings on file with the Court.
`
`Baxter filed this declaratory judgment lawsuit seeking a declaration of noninfringement
`
`regarding U.S. Patent Nos. 6,716,867 (the “’867 Patent”), 8,242,158 (the “’158 Patent”), 8,338,470
`
`(the “’470 Patent”), and 8,455,527 (the “’527 Patent”). Defendants filed a counterclaim for
`
`infringement of the ’867 Patent. There are no material issues of fact, and judgment in Baxter’s
`
`favor as to both its complaint and Defendants’ counterclaim can be granted as a matter of law.
`
`Specifically, Baxter seeks to market and sell a proposed drug product containing
`
`dexmedetomidine hydrochloride in 0.9% sodium chloride injection 200 mcg/50 mL and 400
`
`mcg/100 mL (the “Baxter ANDA Product”). It is undisputed that the Baxter ANDA Product does
`
`not infringe the ’158 Patent, ’470 Patent, and ’527 Patent because it is not disposed in a sealed
`
`glass container as required by the patent claims. Further, the Baxter ANDA Product does not
`
`
`
`Case 1:18-cv-00303-RGA Document 16 Filed 04/24/18 Page 2 of 2 PageID #: 325
`
`infringe the ’867 Patent because Baxter carved out the infringing method-of-use for the ’867 Patent
`
`and does not promote use in an intensive care unit. Additionally, there is no direct or contributory
`
`infringement of the ’867 Patent. Finally, Baxter’s submission of an Abbreviated New Drug
`
`Application in accordance with the Baxter ANDA Product was not an act of artificial infringement
`
`under 35 U.S.C. § 271(e)(2) because Baxter did not submit a Paragraph IV Certification for the
`
`’867 Patent. Accordingly, judgment in favor of Baxter is warranted as a matter of law.
`
`OF COUNSEL:
`
`Neal Seth
`Lawrence M. Sung
`Bethany A. Corbin
`WILEY REIN, LLP
`1776 K St. NW
`Washington, DC 20006
`(202) 719-7000
`
`
`
`
`
`Dated: April 24, 2018
`5755925
`
`POTTER ANDERSON & CORROON LLP
`
`By: /s/ Philip A. Rovner
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`Alan R. Silverstein (#5066)
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`asilverstein@potteranderson.com
`
`Attorneys for Plaintiff
`Baxter Healthcare Corporation
`
`2
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
