ORTHO-McNEIL PHARMACEUTICAL, INC., Plaintiff, v. MYLAN LABORATORIES, INC., et al., Defendants., 2005 U.S. Dist. LEXIS 34380

Summary

The patent holder claimed that the competitor's filing of an abbreviated new drug application, seeking approval to manufacture, use, and offer for sale topiramate tablets prior to the expiration of the patent holder's patent, constituted infringement. The competitor claimed that it was not infringing because the patent did not properly claim topiramate. The parties disputed the meaning of "and" in Claim 1. The competitor claimed that "and" as used in the patent meant "along with or together with" and could only be used in the conjunctive sense. The patent holder claimed that "and" was properly being used in the patent to express alternatives. The court held that the patent holder used "and" to express alternatives in the patent and patent specification. Claim 1 signaled the use of "and" to express alternatives by using the word "independently" to describe one set of circumstances and the word "together" to describe another. Though the patent holder's use of "and" in Claim 1 might not ...