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Intervet, Inc. v. Merial Limited

September 3, 2008

INTERVET, INC., PLAINTIFF,
v.
MERIAL LIMITED AND MERIAL SAS, DEFENDANTS.



The opinion of the court was delivered by: John M. Facciola, United States Magistrate Judge

MEMORANDUM OPINION

Before me is Merial Limited and Merial SAS' Omnibus Motion to Compel Plaintiff Intervet Inc. to Respond to Discovery.

I. Restricted Definition of "PCV-2"

a. Facts

First presented by Merial's motion is whether Intervet can restrict the meaning of a term in an interrogatory to the definition that Judge Kennedy used in his Memorandum Opinion and Order of November 28, 2007. Memorandum in Support of Merial Limited and Merial SAS' Omnibus Motion to Compel Plaintiff Intervet Inc. to Respond to Discovery at 4-6 ("Def. Mem.").

As Judge Kennedy explained, prior to the application for U.S. Patent No. 6,368,601 ("'601 Patent"), the "scientific community was aware of the existence of porcine circoviruses," associated with "a slow and progressive disease that causes gradual weight loss, lesions, and jaundice in young pigs." Intervet, Inc. v. Merial Ltd., No. 06-00658, at 1 (D.D.C.) (order construing six terms of the '601 Patent). The '601 Patent identified five new porcine circoviruses that were unlike the previously known circoviruses and named them "porcine circoviruses of type II (PCV-2)" to distinguish them from the previously known porcine circoviruses, which the inventors named "porcine circoviruses of type I" (PCV-1). Id. at 2. After the '601 Patent application was filed, Intervet began producing a pig vaccine named "Porcine Circovirus Vaccine Type 2" and has brought this action, seeking a declaratory judgment that its vaccine does not infringe the '601 Patent and that, in any event, the '601 Patent is invalid and unenforceable.

Judge Kennedy indicated that he was obliged to construe six terms in the claims section including "PCV-2." Id. at 2. He explained:

Intervet asserts that PCV-2 refers solely to the "five viral strains identified in the '601 Patent" Pl.'s Br. 9, while Merial argues that PCV-2 refers to a broad group of porcine circoviruses that includes, but is not limited to, the five porcine circoviruses identified in the patent. Merial defines this group as consisting of "porcine circovirus[es] of type II that [are] pathogenic to pigs and a causative agent of [Postweaning Syndrome]." Def.'s Br. 23.

Id. at 4.

Judge Kennedy accepted Intervet's analysis and concluded that the term "PCV-2" meant the five viral strains identified in the '601 Patent. Id. at 4. Merial made much of Intervet's own use of the term PCV-2 to refer more generically to the entire group of porcine circoviruses but Judge Kennedy found the argument unpersuasive. Id. at 4-5. He stated:

Merial also argues that the court must accept its definition because it reflects the definition commonly used among persons skilled in the art. Merial notes that Intervet's expert witness, Dr. Raymond Rowland, stated in his deposition that, prior to his work on this patent dispute, he understood PCV-2 as referring to a group of porcine circoviruses. Merial also points out that Intervet itself uses the term PCV-2 to refer to a broad group of porcine circoviruses, as illustrated by the fact that Intervet labels its vaccine that is at issue in this litigation as a vaccine against PCV-2. The court is not persuaded.

As Intervet points out, all of the above-mentioned facts postdate the date of the '601 Patent application. When the '601 Patent application was filed, PCV-2 had no ordinary and customary meaning among persons skilled in the art because the term had not been used prior to the time the '601 Patent was filed. In construing a claim, the court must determine a disputed claim's meaning as of "the time of the invention, i.e., as of the effective filing date of the patent." Phillips, 415 F.3d at 1313 (emphasis added). Accordingly, because PCV-2 had no ordinary and customary meaning at the time of the '601 Patent application, the court must look to the text of the '601 Patent to determine the meaning of PCV-2. See id. Because Merial's interpretation is not anchored in the text of the '601 Patent, the court rejects it.

Id. at 6.

Prior to Judge Kennedy's decision, Merial had propounded interrogatories which did not define its use of the term "PCV-2." Defendants Merial SAS' and Merial Limited's First Set of Interrogatories to Plaintiff Intervet, Inc.; Defendants Merial SAS' and Merial Limited's Second Set of Interrogatories to Plaintiff Intervet, Inc. Intervet answered them after Judge Kennedy's decision using the term "PCV-2" as Judge Kennedy had defined it. See Plaintiff Intervet's Supplemental Responses and Objections to Defendants Merial SAS' and Merial Limited's First Set of Interrogatories ("Pl. Resp."). As a result, there were exchanges in the discovery responses of which the following are typical:

INTERROGATORY NO. 1:

Identify by name, sequence, and any other designation used by Intervet, all PCV-2 vaccines which Intervet has made, used, sold or offered for sale in the United States; identify documents sufficient to identify the composition and sequence of each such PCV-2 vaccine; and identify the five people most ...


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