Case 1:13-cv-01674-RGA Document 479 Filed 08/31/17 Page 1 of 6 PageID #: 17763
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`RECKITT BENCKISER
`PHARMACEUTICALS INC., RB
`PHARMACEUTICALS LIMITED, and
`MONOSOL RX, LLC,
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`Plaintiffs,
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`v.
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`WATSON LABORATORIES, INC. and
`ACTAVIS LABORATORIES UT, INC.,
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`Defendants.
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`RECKITT BENCKISER
`PHARMACEUTICALS INC., RB
`PHARMACEUTICALS LIMITED, and
`MONOSOL RX, LLC,
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`Plaintiffs,
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`v.
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`PAR PHARMACEUTICAL, INC. and
`INTELGENX TECHNOLOGIES CORP.,
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`Defendants.
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`Civil Action No. 13-1674-RGA
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`Civil Action No. 14-422-RGA
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`MEMORANDUM ORDER
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`Defendants Watson Laboratories, Inc. and Actavis Laboratories UT, Inc. 1 (collectively,
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`"Watson") move to open the judgment pursuant to Federal Rule of Civil Procedure 59. (C.A.
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`No. 13-1674, D.I. 460). Defendants Par Pharmaceutical, Inc. and Intelgenx Technologies Corp.
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`(collectively, "Par") move for new testimony and findings pursuant to Federal Rule of Civil
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`Procedure 52(b) or Federal Rule of Civil Procedure 59. (C.A. No. 14-422, D.I. 459).
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`1 Defendant Watson Laboratories, Inc. is now known as Actavis Laboratories UT, Inc. (C.A. No. 14-1451, D.I. 228-
`2, Admitted Fact No. 6).
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`Case 1:13-cv-01674-RGA Document 479 Filed 08/31/17 Page 2 of 6 PageID #: 17764
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`I.
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`LEGAL ST AND ARDS
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`Federal Rule of Civil Procedure 59(a)(2) provides:
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`After a nonjury trial, the court may, on motion for a new trial, open the judgment
`if one has been entered, take additional testimony, amend findings of fact and
`conclusions oflaw or make new ones, and direct the entry of a new judgment.
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`Fed. R. Civ. P. 59(a)(2); see also Fed. R. Civ. P. 59(e) ("A motion to alter or amend a judgment
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`must be filed no later than 28 days after the entry of the judgment."). "[A] judgment may be
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`altered or amended if the party seeking reconsideration shows at least one of the following
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`grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence
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`that was not available when the court granted the[] judgment; or (3) the need to correct a clear
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`error oflaw or fact or to prevent manifest injustice." United States ex rel. Schumann v.
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`AstraZeneca Pharm. L.P., 769 F.3d 837, 848-49 (3d Cir. 2014). Federal Rule of Civil Procedure
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`52(b) provides:
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`On a party's motion filed no later than 28 days after the entry of judgment, the
`court may amend its findings--or make additional findings--and may amend the
`judgment accordingly. The motion may accompany a motion for a new trial under
`Rule 59.
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`Fed. R. Civ. P. 52(b). The standard for reconsideration under Rule 52(b) is similar to that under
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`Rule 59(a)(2). See Gutierrez v. Gonzales, 125 F. App'x 406, 417 (3d Cir. 2005).
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`II.
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`DISCUSSION
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`I entered final judgment on June 28, 2016. (C.A. No. 13-1674, D.I. 452, D.I. 453). On
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`June 29, 2016, I construed the "dried" term in Reckitt Benckiser Pharmaceuticals, Inc. v. Teva
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`Pharmaceuticals USA, Inc. (C.A. No. 14-1451, D.I. 175). Since Teva, I further clarified my
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`construction of"dried" in lndivior Inc. v. Mylan Technologies Inc. (C.A. No. 15-1016, D.I. 87,
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`93). I also recently issued an opinion regarding Watson's and Par's non-infringement of the
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`related "drying" limitation in U.S. Patent No. 8,900,497 (the "'497 patent"), claim 24. (C.A. No.
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`2
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`Case 1:13-cv-01674-RGA Document 479 Filed 08/31/17 Page 3 of 6 PageID #: 17765
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`14-1451). On September 30, 2016, Watson submitted a Major Amendment to Watson's ANDAs
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`to propose a commercial scale-up manufacturing process for Watson's Proposed ANDA Product
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`(the "new" process). (C.A. No. 14-1451, D.I. 228-2, Exh. 1 at p. 10). My previous Trial
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`Opinion related only to ANDA Nos. 204383 and 207087 (the "old" process). (C.A. No. 13-
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`1674, D.I. 446 at 5, D.I. 453).
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`Watson argues that the judgment of infringement should be opened to prevent manifest
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`injustice under Federal Rule of Civil Procedure 59. Watson argues that the central issue is that in
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`light of my construction of "dried" in Teva, conventional top-down drying was excluded and
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`Watson's new process exclusively uses top-down drying such that it does not infringe. Watson
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`argues that opening the judgment will not prejudice plaintiffs because plaintiffs would have a
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`chance to fully litigate this issue with respect the '497 patent. I have recognized that the
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`construction of the term "dried" in the '514 patent is the same as the construction of the term
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`"drying" in the '497 patent. (C.A. No. 15-1016, D.I. 87, 93). Watson argues that the judgment
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`should be opened to harmonize the claim constructions. Watson argues that there is a strong
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`public interest in permitting Watson's ANDA product to enter the market. Par's arguments are
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`substantially similar to those of Watson's. Par additionally argues for relief under Federal Rule
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`of Civil Procedure 52(b ).
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`Plaintiffs argue that prior to judgment, Defendants did not ask me to construe the term
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`"dried." Plaintiffs argue that Defendants could have avoided the outcome. Plaintiffs are clearly
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`correct. Defendants jointly submitted with Teva a "Joint Claim Construction Statement" on
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`November 17, 2015, in which Teva's specialized construction of "drying" was jointly proposed.
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`(See C.A. No. 14-1451, D.I. 92-1at10-12, 19). Plaintiffs argue that Defendants' decision not to
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`raise that construction here was a strategic one to give them stronger potential invalidity
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`arguments at the expense of potential infringement arguments. Plaintiffs argue that there is no
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`policy requiring absolute uniformity in claim construction. (C.A. No. 13-1674, D.I. 467 at 12
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`(citing Markman v. Westview Instruments, Inc., 517 U.S. 370, 391 (1996) ("[T]reating
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`interpretive issues as purely legal will promote (though it will not guarantee) intrajurisdictional
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`certainty .... "))). Plaintiffs argue that Defendants' position is contrary to the public interest in
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`achieving finality and conserving judicial resources. As such, Plaintiffs argue there is no
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`manifest injustice. Watson responds that Watson had no reason to propose the "dried"
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`construction because it would be irrelevant to the infringement inquiry under the facts then
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`known because Watson's old process used a bottom-mounted heated coating roller.
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`I place significant weight on the fact that Par was aware of Teva's specialized
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`construction of "dried" but nonetheless did not pursue that construction in this case. I think the
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`only reasonable conclusion is that this was a strategic decision made by Par. Par has thus fully
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`waived its right to contest this issue. See Lazare Kaplan Int'/, Inc. v. Photoscribe Techs., Inc.,
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`628 F.3d 1359, 1376 (Fed. Cir. 2010) ("[L]itigants waive their right to present new claim
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`construction disputes if they are raised for the first time after trial."). See also Butamax
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`Advanced Biofuels LLC v. Gevo Inc., 2015 WL 4919975, at *1 (D. Del. Aug. 18, 2015) ("A
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`motion for reconsideration is not properly grounded on a request that a court rethink a decision
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`already made and may not be used 'as a means to argue new facts or issues that inexcusably were
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`not presented to the court in the matter previously decided."').
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`Watson also does not get a pass. I am far from sympathetic to Watson given that they
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`knew of Teva's construction well before my judgment. At no time prior to judgment did Watson
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`request a different construction of "dried." By failing to raise this issue, Watson implicitly
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`conceded that the term is to be accorded its plain and ordinary meaning. This potentially gave
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`Case 1:13-cv-01674-RGA Document 479 Filed 08/31/17 Page 5 of 6 PageID #: 17767
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`Watson a stronger invalidity argument at the expense of noninfringement. Furthermore, Watson
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`is self-contradictory as to whether Watson had a good reason not to propose the Teva
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`construction prior to trial. In Watson's attempt to reopen the judgment, Watson suggests that the
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`original ANDA process would infringe under the Teva construction and thus Watson had no
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`reason to propose the construction. In a deposition, Watson's expert, Dr. Gogolin, undercut this
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`reason when he testified that Watson's original ANDA process did not infringe the Teva
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`construction. (See C.A. 13-1674, D.I. 475-3 at 192:4-193:13, D.I. 475-1~~40-58, D.I. 475-2 ~
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`83). In light of these contradictory positions, I have credibility concerns with respect to
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`representations made in Watson's motion. I am not persuaded that Watson should receive a
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`second bite of the apple.
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`As to the other considerations Defendants raise, while there is a public interest in
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`permitting market entry, this is offset by the public interest in achieving finality and judicial
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`efficiency. Defendants are sophisticated repeat litigants represented by experienced national law
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`firms. They should be bound by the litigation decisions they make. Limited weight is given to
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`Defendants' argument that Plaintiffs would have a chance to litigate the issue with respect to the
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`'497 patent. With respect to consistency, I think having consistency across decisions is
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`important, but, I also recognize that absolute uniformity is not required. See Markman, 517 U.S.
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`at 391. Further, although Teva is not complaining, I do not see why Defendants should be able
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`to take advantage of their competitor's litigation decisions, when they have made a contrary
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`decision which they now regret. Considering all of the above, Defendants fail to demonstrate
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`manifest injustice would result. 2
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`2 Par makes the further argument that a change in claim construction amounts to a "change in the controlling law." I
`am not persuaded by this because my claim constructions are not binding precedent on anyone, including me. The
`"change in the controlling law" is meant to refer, in the usual case, to a decision of the Supreme Court or the Court
`of Appeals.
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`Case 1:13-cv-01674-RGA Document 479 Filed 08/31/17 Page 6 of 6 PageID #: 17768
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`III. CONCLUSION
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`Watson's Rule 59 Motion to Open the Judgment (C.A. No. 13-1674, D.l. 460) is
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`DENIED. Par's Motion for New Testimony and Findings Pursuant to Rule 52(b) or Rule 59 is
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`DENIED. (C.A. No. 13-1674, D.l. 459). It is SO ORDERED this3 { day of August, 2017.
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