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Eli Lilly and Co. v. Dr. Reddy's Laboratories, Ltd.

United States District Court, S.D. Indiana, Indianapolis Division

September 6, 2017

ELI LILLY AND COMPANY, Plaintiff,
v.
DR. REDDY'S LABORATORIES, LTD., and DR. REDDY'S LABORATORIES, INC., Defendants.

          ENTRY ON PLAINTIFF'S OBJECTION AND DEFENDANTS' MOTION TO STRIKE NEW ARGUMENTS IN PLAINTIFF'S REPLY

          TANYA WALTON PRATT, JUDGE

         This matter is before the Court on Defendants Dr. Reddy's Laboratories, LTD's and Dr. Reddy's Laboratories, Inc.'s (collectively, “DRL”) Motion to Strike Portions of Plaintiff's Expert Reports Served On Defendants On March 21, 2017 (Filing No. 74), and Plaintiff Eli Lilly and Company's (“Lilly”) Objections to Order on Motion to Strike Portions of Plaintiff's Expert Reports (“the Order”) (Filing No. 97). Also before the Court is a Motion to Strike New Arguments in Plaintiff's Reply That Were Neither Raised in its Objections nor Made to the Magistrate Judge (Filing No. 112). For the following reasons, the Court sustains Lilly's objections, reverses the Order, and denies DRL's motion to strike portions of Lilly's expert report. The Court also denies DRL's motion to strike alleged new arguments in Lilly's reply.

         I. BACKGROUND

         On August 10, 2010, U.S. Patent No. 7, 772, 209 (“the ‘209 patent”) was issued to Lilly. The ‘209 patent covers the method of administering ALIMTA® (pemetrexed for injection)-an anti-cancer drug that requires physicians to co-administer the drug with folic acid and vitamin B12 to reduce the incidence of patient toxicity. This case surrounds a patent dispute. DRL filed a New Drug Application (NDA) with the United States Food and Drug Administration seeking approval to manufacture and sell its pemetrexed products (“NDA Products”)-a similar[1] anti-cancer injection that requires physicians to co-administer the drug with folic acid and vitamin B12. On February 5, 2016, Lilly filed a Complaint against DRL, asserting DRL's NDA Products will be marketed as competing products to ALIMTA® and the use of the NDA Products infringe on the ‘209 patent. (Filing No. 1.)

         Several months later, on June 20, 2016, the Magistrate Judge held an Initial Pretrial Conference, discussing discovery, case management, and other matters. The Magistrate Judge approved as amended the parties' Case Management Plan (“CMP”), setting September 6, 2016 as the deadline for Lilly's infringement contentions and DRL's invalidity contentions. (Filing No. 45 at 5.) On September 6, 2016, Lilly filed infringement contentions, asserting:

The use of DRL's NDA Products meets all limitations of [claims 1-22 of the ‘209 patent], either literally or under the doctrine of equivalents. DRL is liable as a direct infringer based on the filing of its NDA, as well as for active inducement of infringement and/or for contributory infringement.

(Filing No. 48 at 1-2).

         On March 21, 2017, Lilly provided DRL with the expert reports of Bruce A. Chabner, M.D. (“Dr. Chabner”), and Rodolfo Pinal, Ph.D. (“Dr. Pinal”). Ten days after receiving the expert reports, DRL filed a Motion to Strike large portions of the reports, asserting they violated the CMP by raising new theories of infringement not disclosed in Lilly's infringement contentions. (Filing No. 74.) The Court referred the Motion to Strike to the Magistrate Judge and, on April 28, 2017, the Magistrate Judge granted DRL's Motion to Strike. (Filing No. 96.) The Magistrate Judge specifically concluded that Lilly alleged only infringement under the doctrine of equivalents in its infringement contentions; however, Lilly's expert reports address literal infringement, as well as inducement and contributory infringement. Accordingly, the Magistrate Judge excluded the following portions of Dr. Chabner's eight-six (86) paragraph report:

(1) the literal infringement analysis in paragraphs 38-59, and literal infringement-related statements in the report in paragraphs 60, 63, and 80;
(2) the “Inducement of and Contribution to Infringement” section at paragraphs 81 and 82, as well as a portion of paragraph 60;
(3) portions of the Claims Chart attached as Exhibit C to the report; and
(4) the theories under the doctrine of equivalents in paragraphs 60-61, 64-73, and 77-80.

Id. at 20; see also Filing No. 75 at 19-40; 42-44. The Magistrate Judge also excluded the following portions of Dr. Pinal's report:

(1) the partial doctrine of equivalents analysis in paragraphs 15 and 16; and
(2) the section entitled, “DRL's NDA Products Administered with Saline Literally Meets the Pemetrexed Disodium Limitation in the Claims of the ‘209 ...

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