The Federal Circuit upheld Celltrion’s non-infringement victory at the District Court in a summary affirmance, meaning that no opinion was written. Janssen had sought infringement under the doctrine of equivalents, but Judge Wolf found that the claims, if extended to cover the equivalents sought, would have been obvious, and that Celltrion therefore did not infringe. This should bring the lawsuit to a close.
In an order at the end of July, Judge Wolf granted Cellitron’s motion for summary judgment of non-infringement of U.S. Patent No. 7,598,083, the sole patent remaining in this litigation. Janssen’s initial focus had been on a different patent that was found invalid for obviousness-type double patenting. Janssen then shifted focus to allegations that the Defendants infringed the ‘083 patent under the doctrine of equivalents. The ‘083 patent covers compositions for preparing cell culture medium suitable for ultimately producing infliximab, which Janssen sells under the brand name “Remicade.” The asserted claims recite 61 different ingredients, each at a range of concentrations. Only 52 are actually required by the claim to be present, as the remaining 9 have a lower concentration limit of 0. It is undisputed that the accused composition includes all 52 required ingredients, but not all fall within the claimed range. Defendants moved for summary judgment on the grounds that the hypothetical claim that would literally cover the accused composition would ensnare the prior art, which would serve to prohibit application of the doctrine of equivalents. Judge Wolf agreed, finding that this hypothetical claim, while not anticipated, would have been obvious to one of ordinary skill in the art. Janssen, as the party asserting the doctrine of equivalents, bore the burden of proving that the scope of equivalents sought would have been patentable over the prior art, a burden they could not meet. Judge Wolf determined that the claimed composition merely substituted several ingredients of the prior art compositions with known alternatives, which performed in accordance with their previously-established function in providing nutrients to cells. Additionally, while Janssen presented sufficient evidence to permit a finder of fact to determine that the Defendants had copied Janssen’s composition (one of the Graham factors that evidences non-obviousness), this factor would not, even if proven, be enough to overcome the strong prima facie case of obviousness of the hypothetical claim. Accordingly, judgment was entered in favor of the Defendants.