Janssen Biotech, Inc. v. Cellitrion Healthcare Co., Ltd. Et al. (17-cv-11008).

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.

Crosby Legacy Company, LLC d/b/a Philip Crosby Associates v. TechnipFMC plc (18-cv-10814).

Crosby Legacy offers quality consulting services that employ the teachings of its founder, Philip J. Crosby, a pioneer in the field.  Crosby Legacy consulted for energy company FMC under an agreement executed in 2014 which permitted FMC to utilize the Crosby materials company-wide, including copyrighted works and the use of three Crosby trademarks – Absolutes of Quality Management™, Absolutes of Quality™, and Price of Nonconformance™.  The 2014 Agreement restricted continued use of the Crosby materials should FMC experience a change in control.  FMC subsequently merged with Technip S.A., creating defendant company Technip FMC in January 2017. Pursuant to the change of control provisions, Crosby Legacy sought to negotiate an agreement with the new entity to allow them continued use of the Crosby materials.  TechnipFMC expressed a strong interest in continuing the relationship, and according to Crosby Legacy, a $2.3 million agreement was reached via a string of e-mails in May 2017, needing only to be memorialized and executed.  TechnipFMC dragged its feet on the specific language to be included in the new agreement, and ultimately announced in November 2017 that it was no longer interested in working with Crosby Legacy.  At that point, TechnipFMC had used the Crosby materials for eleven months without paying, in violation of the 2014 Agreement’s change of control language.  Crosby accuses TechnipFMC of breaching the 2014 Agreement and of having formed, and then breached, the 2017 Agreement, and also brings claims of breach of the implied covenant of good faith and fair dealing, fraud, 93A claims, trademark and copyright infringement, and unjust enrichment.  The case is before Judge Wolf.