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00941191 

NEW YORK CHERRY HILL SHORT HILLS PHILADELPHIA 

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E-Mail: apollack@buddlarner.com 

 June 28, 2013 

Via ECF 

The Honorable Douglas E. Arpert 

U.S. District Court for the District of New Jersey 

Clarkson S. Fisher Building & U.S. Courthouse 

402 East State Street 

Trenton, N.J. 08608 

 Re: AstraZeneca/Pozen v. DRL, Lupin & Anchen 

Civil Action No. 3:11-CV-2317-JAP-DEA 

Dear Judge Arpert: 

As per Your Honor’s instructions during the June 21, 2013 scheduling conference, DRL 

writes in response to Pozen’s letter dated June 26th (D.E. 148) to explain why additional claim 

construction is unwarranted. 

Pozen concedes that the Court already construed the NSAID coating term,1 and that this 

term contains the phrase that Pozen now wants re-construed. Pozen fails to mention that the 

Court adopted the construction of the NSAID coating term that Pozen proffered and agreed with 

Pozen that this claim term had a “plain and ordinary meaning” and that the “language of the 

claim itself is clear.”2

 Nevertheless, Pozen argues that the Court’s construction of part of this 

term should be redone for three reasons. None of these reasons is persuasive. 

First, Pozen argues that the NSAID coating term includes more than the part it now wants 

construed and no one paid attention to that part when the Court construed the full term. Pozen 

dismisses the prior claim construction as though the eleven (11) words “prevents the release of 

essentially any NSAID from said dosage form” were somehow AWOL when the Court 

construed it. Indeed, Pozen rechristens this term the “35-word phrase” as though the “high” 

 

1

 “a coating that, upon ingestion of said unit dosage form by said patient, prevents the release of 

essentially any NSAID from said dosage form unless the pH of the surrounding medium is 3.5 or 

higher.”

2 See D.E. 142, p. 10; D.E. 67, Plaintiffs’ Opening Markman Submission, p. 6, (“AstraZeneca 

and Pozen submit that this phrase should be given its customary and ordinary meaning.”). 

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number of its words suggests a need for further clarification. But the Court held that the NSAID 

coating term had a “plain and ordinary meaning” and its words were already “clear.” A claim 

term cannot be clear, plain and ordinary if part of it is not. If the Court retains its prior “plain 

meaning” construction of the NSAID coating term, then the part of it that Pozen now wants to 

construe must already be “plain” and “clear.” If that part is, as it must be under the Court’s prior 

“plain meaning” construction, already clear, plain and ordinary, what exactly is left to be done? 

Indeed, if the Court were to construe part of the NSAID coating term after finding its entirety 

“plain” and “clear,” it would necessarily have to retract those findings to assign any other 

meaning to any part of it. 

Second, Pozen says it needs reconsideration of the NSAID coating term construction 

because it now knows details regarding DRL’s proposed ANDA product that it did not know last 

year when the parties briefed and argued claim construction. Pozen wants to recast its claim 

construction around DRL’s accused product. But that is improper. See Wilson Sporting Goods 

Co. v. Hillerich & Bradsby Co., 442 F.3d 1322, 1331 (Fed. Cir. 2006): “[C]laims may not be 

construed with reference to the accused device.” NeoMagic Corp. v. Trident Microsystems, Inc., 

287 F.3d 1062, 1074 (Fed. Cir. 2002); SRI Int’l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 

1118 (Fed. Cir. 1985) (en banc). The Court is not supposed to construe the claims in order to 

capture or exclude DRL’s product. Id. Pozen’s new knowledge of the characteristics of DRL’s 

product is not a proper basis for a renewed claim construction. A patent should be construed 

based upon the intrinsic evidence. If it were proper to use an accused product’s attributes to bias 

the claim construction process, claim construction would be conducted at the end of the case 

when the product’s attributes would be well defined instead of – as our Local Patent Rules 

require – at the beginning. Accordingly, Pozen’s new knowledge about DRL’s product cannot 

be a basis for redoing claim construction. 

Third, Pozen contends there is now a dispute about what some portion of the NSAID 

coating term means and that this dispute requires more claim construction. But whenever courts 

assign a “plain meaning” to a claim, that leaves open a potential dispute between the parties as to 

what that plain meaning is, and how that plain meaning applies to an accused product. Thus, in 

our view, the fact that there is a dispute over a plain meaning claim construction is not new and 

is hardly a basis to redo claim construction.3

 Finally, Pozen argues that claim construction will not cause delay. Of course, that is not 

an argument for doing claim construction – it is an attempt to refute in advance an argument 

against claim construction. Nevertheless, if you allot four months for claim construction – as 

Pozen’s schedule does – it is obvious that there will be some delay. The whole purpose of this 

exercise according to Pozen is to get clarity on a claim term and Pozen will inevitably delay at 

 

3

 We also note that keeping this dispute alive gives neither party an unfair advantage. Both 

parties need to move ahead with discovery and address the infringement question in their expert 

reports – which is exactly what happens when any Court assigns a “plain meaning” construction. 

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least some discovery until it has that clarity. We think the delay is unnecessary and we should 

move the case forward. 

The ‘907 patent has already had claim construction terms briefed twice. First by Pozen, 

DRL and Lupin, (D.E. 67, 69) and then subsequently and discretely by Pozen and Anchen (D.E. 

100, 101). Pozen’s suggested third pass on the same NSAID coating term, or a portion of it, in 

the same case by the same parties should not proceed because it is wasteful, will cause 

unnecessary delay and undermine the claim construction already done. 

For all the reasons set forth here, DRL asks the Court to rest on the claim construction 

already done and its finding that the NSAID coating term has a “plain and ordinary” meaning. 

 Respectfully submitted, 

___________________ 

 Alan H. Pollack 

cc: Counsel of Record (by e-mail) 

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