NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW .JERSEY 

BRAINTREE LAB ORA TORIES, INC. 

RECEIVED 

JUN - 1 2015 

AT 8:30 M 

WILLIAM T. WALSH 

CLERK 

Plaintiff 

Case No. 3:11-cv-01341-PGS-LHG 

V. 

NOVEL LABORATORIES, INC., 

MEMORANDUM OPINION 

Defendants 

SHERIDAN, District Judge. 

INTRODUCTION 

This matter is before the Court on remand from the Federal Circuit. The Federal Circuit 

reversed this Court's decision granting summary judgment in favor of Plaintiff, Braintree 

Laboratories, Inc. ("Braintree") and findings that Defendant, Novel Laboratories, Inc. ("Novel") 

infringed Claims 15, 18, 19, 20, and 23 of the '149 patent. That reversal was based upon the 

Federal Circuit's finding that two claim terms-"clinically significant electrolyte shifts" and 

"patient"-were improperly construed by this Court. Specifically, the Federal Circuit defined the 

term "clinically significant electrolyte shifts" and the term "patient," and directed the Court to find 

whether "SUP REP avoids" producing any "alterations in blood chemistry [electrolyte] that are 

outside the normal upper or lower limits of their normal range" in the general class of persons to 

whom the patent compositions are directed, i.e. a patient population. Braintree Labs., Inc. v. Novel 

Labs., Inc., 749 F.3d 1349, 1356, 1357 (Fed. Cir.), cert. denied, 135 S. Ct. 764 (2014). On remand, 

the Federal Circuit ordered this Court to review the issues of fact-that is, the electrolyte shifts 

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experienced by some of the patients in clinical trials-in light of their "clinical significance." This 

Court conducted a hearing and limited the proofs to that inquiry. 

During that hearing the Court act~d as the trier of fact and it adopted the standards which 

are ordinarily utilized by a jury to evaluate the credibility and weight of the evidence. See, Model 

Jury Charges ofthe Third Circuit, §§ 1.5, 1.6, and 1.7. 

LEGAL STANDARD 

Braintree has the burden of proving infringement by a preponderance of the evidence. 

Siemens Med. Solutions USA, Inc. v. Saint-Gobain Ceramics & Plastics, Inc., 637 F.3d 1269, 1279 

(Fed. Cir. 2011). To satisfy the preponderance standard, Braintree need not produce "definite" 

proof of infringement, but must instead demonstrate that "infringement was more likely than not 

to have occurred." Warner-Lambert Co. v. Teva Pharaceuticals, USA, Inc., 418 F.3d 1326 (2005) 

Courts use a two-step analysis to determine infringement under 35 U.S.C. § 271. Markman 

v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995). "[F]irst, the court determines the 

meaning of the disputed claim terms, then the accused device is compared to the claims as 

construed to determine infringement." Acumed LLC v. Stryker Corp., 483 F.3d 800, 804 (Fed. Cir. 

2007). Literal infringement is proven when each and every claimed limit?ttion is present in the 

accused product. Renishaw PLC v. Marposs Societa '"per Azioni, 158 F.3d 1243, 1247-48 (Fed. 

Cir. 1998). Application of a patent claim to an accused product is a fact-specific inquiry. Kustom 

Signals, Inc. v. Applied Concepts. Inc., 264 F.3d 1326, 1332 (Fed. Cir. 2001). 

In addition, 35 U.S.C. § 271(e)(2)(A) provides that it shall be an act of infringement to 

submit an Abbreviated New Drug Application ("ANDA") "if the purpose of such submission is to 

obtain approval ... to engage in the commercial manufacture, use, or sale of a drug ... claimed in 

a patent or the use of which is claimed in a patent before the expiration of such patent." The 

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infringement analysis compares the asserted claims and the proposed generic product that is likely 

to be sold following FDA approval. Glaxo, Inc. v. Novopharm, Ltd., 110 F.3d 1562, 1569 (Fed. 

Cir. 1997); see also Abbott Labs. v. TorPharm, Inc., 300 F.3d 1367, 1373 (Fed. Cir. 2002). 

FINDINGS OF FACT 

In light of the testimony, including the credibility of witnesses and the evidence of proof, 

the Court finds the following facts: 

1. The parties agreed that the following claims, 15, 18, 19, 20, and 23 of the '149 

patent are in issue. Claims 15 and 18 are independent composition claims. Claims 19, 20, and 23 

are dependent method claims. 

Patient Population 

2. As noted above, the federal circuit defined patient population to be "the general 

class of persons to whom the patent composition are directed." Braintree, 749 F.3d at 1356, 1357. 

3. In order to determine whether the "percentage" or the "means" approach was 

appropriate, there was a need to determine what constitutes "patient population." 

4. In order to evaluate the general class of patient or the patient population, the parties 

agreed that patient population includes a person that a doctor has said has a need for a colonoscopy. 

There are two categories of such people: 1) people over 50 who have colonoscopies for screening 

for polyps and cancer; and 2) people of any age who have some need for intestinal surgery or other 

procedure requiring a clear colon. 

5. The general class of persons to whom SUP REP is directed is more limited than the 

broader rules above: adults who are indicated for colonoscopy and who do not have a 

contraindication for SUP REP. Tr. 153:24- 154:21, 156:5-14, 157:7-13 (Peura Direct); Tr. 32:24-

33:3, 63:22-25 (Heitjan Direct); see also 249:1-23 (Sconzo Direct). 

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6. A person is "indicated for" colonoscopy if a healthcare provider has made a 

decision that there is a reason for the patient to undergo colonoscopy. A "contraindication" is a 

condition for which a certain medication should not be administered because the medication may 

have an adverse effect on the patient's health. Tr. 153:24-154:21, 157:7-13 (Peura Direct). 

7. The contraindications for SUP REP are listed in the SUP REP label. Patients 

suffering from these conditions would not be included in the SUPREP patient population. Tr. 

154:22-156:14 (Peura Direct); PTX076 (SUPREP Label) at BRTSUP00000129. 

Clinical Trials 

8. It was uncontroverted that there were four SUPREP clinical trials conducted by 

Brai~tree at the direction of the FDA. Each study constituted of patients within the patient 

population. Braintree's and Novel's experts (Dr. Heitjan and Dr. Goldfarb, respectively) used 

those trials to support their findings. 

9. There are four SUPREP clinical trials: BLI800-301; BLI800-302; BLI800-303; 

and BLI800- 202 (collectively "the SUPREP clinical trials"). Tr. 55:23-56; PDX11-8, 11-10 

(Heitjan Slides). 

10. BLI800 - 301 involved 194 subjects randomly assigned to receive SUP REP and 

193 subjects randomly assigned to receive a prep called MoviPrep. All subjects received two 

bottles of the prep, 1-3 hours apart, on the day before colonoscopy. Three blood draws were taken: 

one screening draw several days before taking the prep, one just before colonoscopy after the 

second bottle was taken, and one about a month after the colonoscopy. Tr. 57:9-58:6 (Heitjan 

Direct); PDX11-7 (Heitjan Slides); PTX411 (BLI800-301 Clinical Study Report). 

11. BLI800-302 involved 181 subjects randomly assigned to receive SUPREP and 

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183 subjects randomly assigned to receive MoviPrep. Taking a split-dose regimen for SUPREP, 

the subjects receiving SUPREP took two bottles of the prep 10 to 12 hours apart. Three blood 

draws were taken, with the same timing as in the 301 study. Tr. 58:7- 19 (Heitjan Direct); PDX11-

8 (Heitjan s·lides); PTX387 (BLI800-302 Clinical Study Report); PTX76 (SUPREP Label) at 2. 

12. BLI800-303 involved 63 subjects randomly assigned to receive SUPREP and 67 

subjects randomly assigned to receive NuLytely. Consistent with the FDA-approved split-dose 

regimen for SUPREP, the subjects receiving SUPREP took two bottles of the prep 12 hours apart. 

Two blood draws were taken: one at screening (before the prep was taken), and one just before 

colonoscopy after the second bottle was taken. Tr. 58:20-59:9 (Heitjan Direct); PDX11-9 (Heitjan 

Slides); PTX394 (Rex 2010 Article); PTX76 (SUPREP Label) at 2. 

13. BLI800-202 was a pharmacokinetic/pharmacodynamic study, in which frequent 

blood measurements are taken to determine the time course of any effects of treatment. The 

study involved 18 subjects: 6 healthy, 6 with moderate renal impairment, and 6 with mild/moderate 

hepatic impairment. All subjects received two bottles ofSUPREP 12 hours apart. The subjects had 

thr~ee pre-treatment ("baseline") blood draws- one at a screening visit, one a day before taking the 

prep, and one immediately before the first bottle. They also had many blood draws after taking the 

prep: at 1, 2, 4, 8, and 10 hours after the first bottle, 10 minutes before the second bottle, 1, 2, 4, 

8, 12, and 18 hours after the second bottle, and before noon on follow up days 3 and 6. No 

colonoscopies were performed. Tr. 59:10-60:14 (Heitjan Direct); PDX11-10 (Heitjan Slides); 

PTX41 0 (BLI800-202 Clinical Study Report). 

14. BLI800-30 1 and 302 had the same normal ranges for each electrolyte measured. 

The 202 and 303 studies had different normal ranges than the 301 and 302 studies. Because of 

these differences, an electrolyte value could be inside the normal range for one study but outside 

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the normal range for another study. Tr. 61:1-9; 63:10-21 (Heitjan Direct); PDX11-11 (Heitjan 

Slides); PTX410 (BLI800-202 Clinical Study Report) at 219, 224; PTX411 (BLI800-301 Clinical 

Study Report) at 47; PTX387 (BLI800-302 Clinical Study Report) at 45; PTX394 (Rex 2010) at 

335. 

Witnesses 

15. Each party presented two witnesses. Braintree's witnesses were Dr. Heitjan and 

Dr. Peura. Novel's witnesses were Dr. Goldfarb and Dr. Sconzo. A brief description of each 

witness's experience is set forth below. 

16. Dr. Daniel Heitjan is currently a professor of statistical science at Southern 

Methodist University, and professor of biostatistics at the University of Texas Southwestern 

Medical Center. Tr. 29:7-6 (Heitjan Direct). He was previously a statistics professor at the 

University of Pennsylvania for 11 years. PTX486 (Heitjan CV). Dr. Heitjan has many years of 

experience in the design, conduct, and analysis of clinical trials, and in particular in the 

interpretation of clinical trial data. T32:8-11 (Heitjan Direct); Tr. 133:20-124:10 (Heitjan ReDirect); PTX486 (Heitjan CV). The Court admitted Dr. Heitjan as an expert in biostatistics. Tr. 

30:14-31 :5 (Heitjan Direct). Dr. Heitjan is not a person of ordinary skill in the art ("POSIT A") as 

defined during the original trial. 

17. Dr. David Peura, a gastroenterologist, has served as an emeritus professor at the 

University of Virginia since 2008. ECF No. 380 ("Validity Op.") at 4; PTX485 (Peura CV). Dr. 

Peura is an expert in gastroenterology, gastrointestinal procedures, and the use of preparations to 

prepare patients for gastrointestinal procedures. Validity Op. at 5. Dr. Peura is also an expert with 

respect to electrolyte shifts and transfers that take place when an osmotic laxative, like SUP REP, 

is ingested. Tr. 146:14-25 (Peura Direct). 

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18. Dr. David Goldfarb testified at the original trial. He is a nephrologist who 

specializes in diagnosing, assessing, and treating kidney diseases, including diseases associated 

with electrolytes, fluid, and electrolyte balance. Tr. 288:5-9, 289: 12-17; Tr. 113:17-23, 260:14-22, 

261:12-20. Dr. Goldfarb is an expert in electrolytes, electrolyte shifts, and evaluating electrolyte 

physiology in response to the administration of a bowel prep. Tr. 289:18-25. Dr. Goldfarb is a 

POSIT A as it relates to the '149 patent. Tr. 300:16-24. 

19. Dr. Sconzo is a gastroenterologist who regularly practices in Long Island. He is 

board certified for colon-rectal surgery by the Fellow American College of Surgeons and the 

Fellow American College of Colon Rectal Surgeons. DTX691 (Sconzo CV). Dr. Sconzo is a 

POSIT A as defined in the original trial. Tr. 248:4-6. He was admitted as an expert in "colorectal 

surgery, including administration of colonoscopies, and the use of preps to prepare patients for 

colorectal surgical procedures." Tr. 246:11-19. 

Credibility of Witnesses 

20. Braintree's witnesses were more credible than Novel's witnesses. More 

specifically, Dr. Goldfarb testified honestly and comprehensively at the original trial; but here his 

testimony was riddled with minor errors, an~ this Court finds it was less than credible. Therefore, 

Dr. Goldfarb's testimony is given less weight than that of Dr. Heitjan and Dr. Peura. Dr. Goldfarb 

admitted to some mistakes which are detailed in paragraphs 21-25 below. 

21. Dr. Goldfarb admitted that at least two of the patients he identified as having 

clinically significant electrolyte shifts caused by SUPREP in the 303 study never took SUPREP. 

Tr. 387:16-22 (Goldfarb Cross). 

22. Dr. Goldfarb testified that Patient 4001 in the 303 study had a potassium shift 

caused by SUPREP. Tr. 383:23-384:2 (Goldfarb Cross). During the 303 study, Patient 4001 took 

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NuLytely, a large volume, isotonic colon prep, but did not take SUPREP. Tr. 385:6-7 (Goldfarb 

Cross); PTX454B at BRTSUP000124959. Dr. Goldfarb admitted that SUPREP did not cause the 

electrolyte shift in Patient 4001. Tr. 385:8-10 (Goldfarb Cross). 

23. Dr. Goldfarb testified that Patient 4029 in the 303 study had a bicarbonate shift 

caused by SUPREP. Tr. 386:17-19 (Goldfarb Cross). Patient 4029 took NuLytely, but did not take 

SUPREP. Tr. 387:8-12 (Goldfarb Cross); PTX454B at BRTSUPOO 124959. Dr. Goldfarb 

incorrectly concluded Patient 4029 had a bicarbonate shift caused by SUPREP. Tr. 387:13-14 

(Goldfarb Cross). 

24. In addition to paragraph 18, the sample drawn from patient 4001 was grossly 

hemolyzed. Tr. 385:17-386:6 (Goldfarb Cross); PTX454B at BRTSUP00124972. Dr. Goldfarb 

admitted that the measurements for Patient 4001 were questionable because the sample was 

hemolyzed. Tr. 386:13-15 (Goldfarb Cross). 

25. In addition, Dr. Goldfarb made other errors in the 202 and 301 studies. See, crossexamination of Dr. Goldfarb, Tr. 390:1-415:20. 

26. Novel argues that Goldfarb's mistakes were unintentional and did not undermine 

his substantive findings. Novel argues: 

On direct, Dr. Goldfarb testified that 18 out of 18 (1 00%) patients 

exhibited outside-of-normal range shifts in the 202 Study, 80 out of 180 

( 44%) patients exhibited outside-of-normal range shifts in the 302 Study, 

and 20 out of 63 (32o/o) patients exhibited outside-of-normal range shifts 

in the 303 Study. Tr. at 325:4-17, 330:9-18, 352: 17-353: 1. Dr. Goldfarb 

was the only expert to have actually reviewed the thousands of pages of 

clinical trial data in this case. Tr. at 382:17-19. In doing so, Dr. Goldfarb 

made three mistakes in summarizing the data associated with two patients 

from the 303 Study and one patient from the 301 Study. Dr. Goldfarb 

never intended to mislead the Court (Tr. at 435 :9-15), and while 

unfortunate, his mistakes should not cast doubt on the fact that SUPREP 

administration caused abnormal shifts. Indeed, Dr. Goldfarb's testimony, 

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aside from the three inadvertent mistakes, was unrebutted by either of 

Braintree's experts. 

Novel Br. at 30 n.9. 

27. The Court rejects Novel's argument (paragraph 26) concerning Goldfarb's 

testimony because the inconsistencies demonstrated a lack of a thorough analysis of the data 

presented in the clinical trials. As such, the Court gave little weight to Goldfarb's testimony 

compared to Heitjan and Peura. 

28. Dr. Sconzo testified in a credible manner. His testimony concerned a practitioner's 

vie·wpoint. That is, Dr. Sconzo "never discusses issues concerning bowel prep choice with his 

patients in the context of mean data." Tr. 262:25-263:1,263:3-8. Instead, Dr. Sconzo testified that 

he "'looks at individual patients within the general patient population." Novel Br. at 9. Despite the 

testimony, the Court cannot rely on a practitioner who cannot give substantive testimony on the 

electrolyte shifts within a patient. The Court gives little weight to Dr. Sconzo's testimony. 

29. Dr. Peura' s testimony was credible except for on one point. That is, Dr. Peura 

testified that he did not know of any untoward effects from the use of SUPREP; however, Dr. 

Peura admitted that he did not research the Med Watch section of the FDA website, nor did he 

inquire of Braintree whether there were any adverse effect reports. 

30. When Dr. Peura testified, I did not admit DTX715, but the parties agreed to a more 

limited proffer. The parties entered a stipulation into evidence as exhibit DTX715. The stipulation 

reads: 

Plaintiff Braintree Laboratories, Inc. and Defendant Novel 

Laboratories, Inc. have met and conferred regarding DTX707, 

DTX708, DTX709, DTX710, and DTX715. The parties hereby 

stipulate, subject to the Court's approval, to the following: 

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Defendant Novel Laboratories, Inc. and Plaintiff Braintree 

Laboratories, Inc. hereby stipulate to the admissibility of 

DTX715 for the limited purpose of showing that the reports 

contained in DTX7 I 5 were filed with the United States Food 

and Drug Administration, are kept on file with FDA, and are 

available to the public through FOIA request. DTX715 

(bearing the Bates range NOV0011 04 7 -77) contains the pages 

corresponding to the following exhibits, marked separately for 

identification at trial as: DTX707 (NOVOO 11 066-67), 

DTX708 (NOVOOll 074-77), DTX709(NOVOO 11 053-55), 

and DTX710(NOV011067-68). Novel \Vithdraws its offer of 

DTX707, DTX708, DTX709, and DTX710. 

31. Based on Dr. Peura's unfamiliarity with the Med Watch report and his failure to 

ask Braintree about untoward effects, his testimony regarding same is suspect. This broad 

statement of not being aware of any untoward effects of SUP REP on patients is incredulous since 

he did not perform any research. Except for this point, the Court found Dr. Peura to be a credible 

witness. However, the untoward effects argument raised by Novel in its cross-examination of Dr. 

Peura had no effect on the outcome of this hearing because it was not evidence of clinically 

significant electrolyte changes in the patient population. Anecdotal evidence is of little relevance. 

Mean v. Percentage 

32. Dr. Heitjan, a biostatistician, insists that the best approach to answer the Federal 

Circuit's query regarding whether the patient population had alteration of electrolytes outside the 

normal range is to utilize a means analysis. 

33. According to Dr. Heitjan, a means analysis is a standard or fundamental approach 

to address patient population inquiries, and it is the most basic concept he teaches to his students. 

(Tr. 45: 12-17). Dr. Heitjan stated: 

Well, in statistics we have lots of tools for conducting different kinds 

of analyses, for answering different kinds of questions. So we're 

always looking for the right tool that will answer the question that's 

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being specified. And that's relevant here because the Circuit Court 

has been very specific about saying what kind of analysis needs to 

be done, that is looking for clinically significant shifts referring to 

shifts outside of the normal range in a particular population. So those 

directives lead me as a statistician specifically to analyze means 

looking at changes in the means. 

34. Novel's approach is different from Dr. Heitjan's methodology. Novel argues that 

the Federal Circuit requires a percentage approach to determine if there are clinically significant 

electrolyte shifts. That is, to determine the percentage of the patient population that are not within 

the normal range of electrolyte levels. This is accomplished by inserting numerical factors into the 

following formula: 

The number of patients outside of normal range 

Patient Population 

Novel's argument relies on the text of Federal Circuit opinion. Novel argues: 

There is not a single instance in the Federal Circuit decision where 

the Court mandates that use of "mean" or "average" data to measure 

clinically significant electrolyte shifts in a patient population. Tr. 

54:22-25. In fact, the opposite is true. All three members of the 

appellate panel . addressed the issue of clinically significant 

electrolyte shifts in the context of percentage of patients, not a mean 

analysis. In the majority opinion, Judge Prost referenced "a large 

percentage of patients" -- not an "average" of the entire, patient 

population as Braintree's experts now posit-when describing the 

absurdity of Braintree's initial proposed construct on for a patient as 

meaning "one or more." Braintree Labs., 749 F.3d at 1357. 

Likewise, Judge Dyk, in his concurrence/dissent, referenced "the 

percentage of individuals experiencing such electrolyte shifts," "a 

majority of patients," and "a significant minority or about one-third 

of patients" when discussing measurement of electrolyte shifts. 

Braintree Labs., 749 F .3d at 1361 n.l. Finally, in dissent, event 

Judge Moore characterizes clinically significant electrolyte shifts as 

occurring in a "percentage of people," a "statistically significant 

number of people" or a "majority" not in a mean or average of the 

entire patient population taking SUPREP as Braintree's experts 

would have this Court believe. Jd. at 1367, n.3 

Dr. Goldfarb's opinion was of concern. He noted that a major fraction of hundreds of 

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patients demonstrated the existence of clinically significant electrolyte shifts; however on crossexamination he stated that a major fraction is a "qualitative" number. (Tr. 431:21-433 :24). The 

use of the word "qualitative" gave rise to the question about whether the percentage analysis was 

valid because it may vary among POSIT As. As such, the opinion of Dr. Goldfarb was given less 

weight. 

35. In addition, Novel relied upon Dr. Goldfarb's testimony and who Novel argues that 

his testimony is in accordance with FDA analysis. Dr. Goldfarb opined that percentage analysis 

was more appropriate. Novel noted: 

Importantly, FDA findings corroborate Dr. Goldfarb's opinion that 

SUPREP produces clinically significant electrolyte shifts in a 

significant portion of the general class of persons to whom the '149 

patented invention is directed. FDA reviewers were "particularly 

attentive to the impact of SUPREP on fluid and electrolyte 

disturbances." DTX675 at FDACDER00026. That means that 

"since everyone understands that hypertonic bowel preps are 

associated with changes in the balance of electrolytes and lead to . 

these kinds of clinically significant effects, the inventors, the 

investigators, and the FDA were all going to pay attention to the 

effect of SUP REP on fluids and electrolytes." Tr. 340:14-23. "The 

specific abnormalities of interest included low serum bicarbonate, 

high BUN, high creatinine, high uric acid, high magnesium, and 

high/low chloride, sodium, potassium, phosphate and osmolality." 

DTX675 at FDACDER00027. The FDA's approach of evaluating 

SUPREP's effect on electrolytes and blood chemistry is that the '149 

patent inventors and Dr. Goldfarb took, and inconsistent with the 

approach of Dr. Heitjan's and Peura. [Tr. 341 :6-13.] 

36. Despite Novel's argument that the Federal Circuit mandated the percentage 

approach, Dr. Heitjan states that the issue presented concerns a patient population and requires a 

mean analysis. He noted: 

Right. So the Circuit Court is saying you need to look not at a 

patient, but at the patient population. The second element of what 

they're saying is you need to look for clinically significant 

differences wh!ch would be effects of moving, you know, shifts 

outside of the normal range. So I interpret that as saying well, we 

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need to look at the mean because that's the parameter that's relevant 

to the population. So we see if the means shift outside of the normal 

range. Tr. 55:14-22. 

37. The testimony of Dr. Heitjan and Dr. Peura demonstrated that the percentage omits 

factors which the mean analysis considers. For instance, the percentage approach does not measure 

variability of the patient population, but the means approach does so. 

38. Dr. Heitjan explained variability. When an individual characteristic, such as 

electrolyte level is mea.sured, there is variability. Heitjan, as a biostatistician, describes this as 

"between-subject'' and "within-subject" variability. "Between subject" variability refers to 

differences in measurements between different people. "Within subject" variability refers to 

differences in measurements taken from one individual over time. Tr. 42:6-44:2 (Heitjan Direct). 

39. Dr. Peura agreed with Dr. Heitjan's variability argument for several similar reasons. 

Dr. Peura testified that variability may affect electrolyte levels in terms of intrinsic, extrinsic and 

analytic variables. Tr. 171:20-172:14 (PeuraDirect). 

40. Intrinsic factors that can affect electrolyte levels include age, gender, exercise, 

ethnicity, and whether the patient is using other drugs. Tr. 172:15-173:6; 178:13-180:9 (Peura 

Direct); PTX396; PDX12-9 (Peura Slides). Extrinsic factors that can affect electrolyte levels 

include fasting, dehydration, time of blood draw, stress, and hyperventilation. These factors are 

present in the context of colonoscopy preps. Tr. 173:7-174:7 (Peura Direct); PDX12-10 (Peura 

Slides). 

41. Dr. Peura testified that extrinsic and intrinsic factors may result in a biologic 

variation. For example, if blood is drawn from a person once a week for ten weeks and an analyte 

is measured in each blood draw, it is unlikely that all ten values would be the same. As a result, 

the mean approach considers such variability accruing due to the number of blood draws. 

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Tr. 182:11-16 (Peura Direct); PTX397 ("Clinical Chemistry") at 6-7. 

42. As noted in paragraph 39 above, analytic factors may also affect electrolyte levels. 

Such analytic factors include human error, equipment variability, exposure to ambient air, 

hemolysis, and the length of time that a blood sample sits before analysis. Dr. Heitjan refers to this 

concept as "measurement error," which can cause "within subject" variability. Tr. 174:8-175:11, 

177:14-178:12; 181:23-182:10 (Peura Direct); 43:1-15 (Heitjan Direct); PTX395 ("Variation, 

Errors, and Quality in the Clinical Laboratory") at 3, 7; PTX397 ("Clinical Chemistry") at 6-7; 

PDX12-11 (Peura Slides). 

43. Based upon the credibility of Dr. Heitjan and Dr. Peura and the questionable 

credibility of Novel's experts, the Court finds the means approach is the best methodology to 

utilize. The primary reason for that finding are patient variability factors explained above. 

44. Dr. Heitjan testified about how he applied the means approach to clinical trials: 

(a) Dr. Heitjan calculated the percent of the subjects in each of the SUPREP clinical 

trials that had a pretreatment (or "baseline") value outside the normal range for any electrolyte. 

His results are presented in PTX482. In the BLI800-202 study, 44% of patients had at least one 

baseline serum electrolyte value outside the normal range. Baseline out-of-range results were about 

30% in the BLI800-301 and 302 studies, and about 26o/o in the BLI800-303 study. These results 

show that it is common for a subject to have an electrolyte value outside the normal range without 

taking any colon prep, simply as a result of within-subject variability. PTX482 (All Studies 

Baseline Percentages); Tr. 64:17-66:13 (Heitjan Direct); PDX11-12 (Heitjan Slides). 

(b) Another way to evaluate the variability in subjects' electrolyte values before they 

take a colon prep is by analyzing the baseline data from the BLI800-202 study, which involved 

three separate blood draws before the patients took any colon prep. The data is summarized in 

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PTX481. It shows that patients' electrolyte values moved - including with respect to the normal 

range - during the three baseline measurements, even though the patients had not yet been 

administered SUP REP. This occurred in healthy patients as well as impaired patients. This data 

confirms that electrolyte values can move from inside to outside the range due to within-subject 

variability, unrelated to a prep. PTX481 (BLI800-202: Pre-Dose Electrolyte Levels); Tr. 67:3-

71:19; PDX11-13 (Heitjan slides) (animation); PDX11-14 (Heitjan slides) (animation). 

(c) PTX481 shows how biologic and analytic variation can confound the interpretation 

of single patient blood values. Tr. 183:15-184:9 (Peura Direct); PTX481 (BLI800-202: Pre-Dose 

Electrolyte Levels). Because the pre-dose blood levels vary within and between subjects, the 

individual data gleaned from the study may not give the full explanation of what is occurring in 

the patient population. 

Means Approach 

45. According to Dr. Heitjan, the term "mean" refers to two related concepts. The first 

concept is the sample mean (average). That is, if you have ten subjects and you have a value for 

each subject, you can calculate the sample mean by adding the values for each subject and dividing 

by ten. The second concept is the population mean, which refers to the mean for the entire 

population. The sample mean is then used to estimate the population mean. Tr. 36:18-37:13 

(Heitjan Direct) (emphasis added). 

46. According to Dr. Heitjan, clinical trials are conducted by drawing a representative 

sample from a population. You can measure a particular characteristic in the sample, such as an 

electrolyte level, and calculate the sample mean. The sample mean can be used to estimate the 

population mean. The larger the sample, the better the esti1nate of the population mean. Tr. 38:17-

39:13 (Heitjan Direct); PDXll-4 (Heitjan Slides) (animation). 

15 

Case 3:11-cv-01341-PGS-LHG Document 461 Filed 06/01/15 Page 15 of 26 PageID: 29846
47. A "representative sample" refers to a sample in which no subset of the population 

-such as older people or men- are overrepresented. Tr. 39:14-20 (Heitjan Direct). 

48. Typically, the individual values for a particular variable, such as an electrolyte 

level, are concentrated in the middle of the distribution of values, with fewer observations toward 

the tails of the distribution, thereby creating a bell curve shape. The individual values aggregate 

around the mean. An effect on the population caused by a treatment is observed by a shift in the 

curve and the mean. The larger the shift in the mean, the greater the effect of the treatment. Tr. 

37:19-38:13 (Heitjan Direct); PDX11-3 (Heitjan Slides). 

,. ,.--, --

-..... ' ' ' ' ' ' ' ' ' ' 

;'; 

{/ 

, 

.... ............ -....... -- ...... 

, C:.')' 

"' ' 

/ ' 

/ ' 

I '\ 

'\ 

' ' ' 

49. A confidence interval measures how precisely the sample mean estimates the 

population mean. It can be thought of as a range of likely values of the true population mean. 

50. A 95 percent confidence interval indicates that there is a 95 percent certainty that 

the true population mean is within the interval. Tr. 39:21-41:3 (Heitjan Direct); PDX11-5 

16 

Case 3:11-cv-01341-PGS-LHG Document 461 Filed 06/01/15 Page 16 of 26 PageID: 29847
(Heitjan Slides). Dr. Heitjan removed several individual subjects from the top and bottom of the 

sample to reach the confidence interval. 

51. The confidence interval is normally depicted with bars extending out from the 

mean, where the "width" of the confidence interval refers to the distance from the bottom to the 

top of the line. The confidence interval widens as the variability of the data increases, and narrows 

as the sample size increases. Tr. 41:4-42:4 (Heitjan Direct); PDXll-5 (Heitjan Slides). 

52. The electrolytes that are measured in the blood are bicarbonate, calcium, chloride, 

magnesium, phosphorus, potassium, and sodium. Tr. 159:7-20 (Peura Direct); PTX490, at 439, 

Appendix C (FDA Manual); see also Tr. 410:3-6,409:14-16 (Goldfarb Cross). 

53. The analytes listed in the "Enzymes" and "Other" categories of the Investigations 

Operations Manual are not electrolytes. Tr. 159:7-23 (Peura Direct); PTX490, at 

439, Appendix C (FDA Manual); Tr. 410:11-411:20 (Goldfarb Cross). 

54. Dr. Heitjan conducted a means analysis of the electrolyte data from the SUPREP 

clinical trials. These materials included data files provided to Braintree directly by the 

laboratories that conducted the testing. Dr. Heitjan received data files in various formats, 

including SAS (the format used by the FDA) and Excel. The data fil~s that Dr. Heitjan received 

were provided to the Court as PTX432. Dr. Heitjan also received data handling guidelines 

(PTX430) describing how Braintree handled routine data issues that arose during clinical trials. 

Dr. Heitjan testified that any biostatistician could have conducted the same analysis that he 

conducted using the data on PTX432. Tr. 88:18- 89:15 (Heitjan Direct); 114:4-13 (Heitjan 

Cross); 134:11-135:14, 139:9-21 (Heitjan Re-Direct); PTX432 (data disk); PTX430 (data 

handling guidelines) 

17 

Case 3:11-cv-01341-PGS-LHG Document 461 Filed 06/01/15 Page 17 of 26 PageID: 29848
55. Dr. Heitjan analyzed clinical trial data in the patients who took SUPREP for the 

seven electrolytes measured in blood serum in the SUPREP clinical trials: bicarbonate, calcium, 

chloride, magnesium, phosphate, potassium, and sodium. Tr. 57:1-6 (Heitjan Direct). 

56. Dr. Heitjan found that, after administration of SUPREP, none of the mean serum 

electrolyte levels in any of the SUP REP clinical trials fell outside the upper or lower limits of the 

normal range for any of the seven electrolytes. The means changed little from before to after 

administration of SUPREP in each of the trials. Tr. 34:6-17 (Heitjan Direct); PTX483 (Heitjan 

SUPREP Analysis); PDX11-15 through 11-50 (Heitjan Slides). 

57. For BLI800-301, Dr. Heitjan calculated the means and 95% confidence intervals 

for the sample population who took SUPREP for bicarbonate, calcium, chloride, magnesium, 

phosphate, potassium, and sodium levels. He made these calculations at baseline, at the 

colonoscopy time point a few hours after administration of SUPREP, and at the follow-up time 

point 30 days later. The means barely changed at all between these three time points for each 

electrolyte, and did not approach the outer limits of the normal range. Tr. 72:8-75:23 (Heitjan 

Direct); PTX483 (Heitjan SUP REP Analysis) at 8-14; PDX11-15 through 11-21 (Heitjan Slides). 

58. For BLI800-302, Dr. Heitjan conducted the same analysis as for BLI800-301. As 

in the 301 results, the means barely changed at all between the three time-points for each 

electrolyte, and did not approach the outer limits ofthe normal range. Tr. 75:24-77:14 (Heitjan 

Direct); PTX483 (Heitjan SUPREP Analysis) at 15-21; PDX11-22 through 11-28 (Heitjan 

Slides); see also Tr. 348: 18-25, 351:1-5 (Goldfarb Direct). 

59. For BLI800-303, Dr. Heitjan analyzed the two time points that were collected in 

the study (baseline and colonoscopy). As in the 301 and 302 results, the means barely changed at 

18 

Case 3:11-cv-01341-PGS-LHG Document 461 Filed 06/01/15 Page 18 of 26 PageID: 29849
all between the time points for each electrolyte, and did not approach the outer limits of the normal 

range. Tr. 77:15-79:11 (Heitjan Direct); PTX483 (Heitjan SUP REP Analysis) at 22-28; 

PDX11-29 through 11-35 (Heitjan Slides). 

60. Dr. Heitjan combined the data from the BLI800-301, 302, and 303 studies because 

these studies had similar eligibility requirements, and the larger sample size more precisely 

estimates the population mean. Dr. Heitjan calculated means and 95o/o confidence intervals for that 

combined data. The means barely changed between the ti1ne points for each electrolyte, and did 

not approach the outer limits of the normal range. Tr. 79:12-82:9 (Heitjan Direct); PTX483 

(Heitjan Analysis) at 29-35; PDX11-36 through 11-42 (Heitjan Slides). 

Bicarbonate: 

~ ~----------------------------------------------------------~ 

....J 

oUJ 

E 

g -

301-302 

303 

+ 

fl - .............................................................................................................. . 

I 

Baseline 

I 

Colonoscopy 

Time 

19 

I 

Follow-up 

Case 3:11-cv-01341-PGS-LHG Document 461 Filed 06/01/15 Page 19 of 26 PageID: 29850
Sodium: 

0 

<D -

0 

lO -

0 

~ -

0 

(") -

0 

N -

301-302 

303 

~_,~----------------------------------------------~,----------------------------------------------,,--~ 

Baseline Colonoscopy 

Calcium: 

co -

I 

Baseline 

Time 

I 

Colonoscopy 

Time 

20 

Follow-up 

301-302 

303 

I, 

Follow-up 

Case 3:11-cv-01341-PGS-LHG Document 461 Filed 06/01/15 Page 20 of 26 PageID: 29851
Chloride: 

~ UJ 

E 

0 

N -

0 

0 -

I 

Baseline 

Magnesium: 

0 

('>j -

..J ~ - oUJ 

E ~ 

(() 

-

N -

I 

Baseline 

I 

Colonoscopy 

Time 

I 

Colonoscopy 

Time 

21 

301-302 

303 

I 

Follow-up 

301-302 

303 

• 

1 

Follow-up 

Case 3:11-cv-01341-PGS-LHG Document 461 Filed 06/01/15 Page 21 of 26 PageID: 29852
Phosphate: 

301-302 

303 

~- --------------------------------------------------------

0 

_j -i 

32 

0> 

E 

1.[) 

(") 

0 

C'"i 

-

-

+ 

I 

Baseline 

Potassium: 

_j 1.[) o- -i - UJ 

E + 

0 

-i -

I 

Colonoscopy 

Time 

+ 

I 

Follow-up 

301-302 

303 

+ 

~- --------------------------------------------------------

I I I 

Baseline Colonoscopy Follow-up 

Time 

22 

Case 3:11-cv-01341-PGS-LHG Document 461 Filed 06/01/15 Page 22 of 26 PageID: 29853
61. For BLI800-202, Dr. Heitjan conducted the same analysis as for the BLI800-301, 

302, and 303. The 202 study involved multiple blood draws after each administration of 

SUPREP, and Dr. Heitjan used all time points, as well as the last baseline time point. The 

confidence interval in the 202 study was somewhat larger than those in the 301, 302, and 303 

studies because of the smaller sample size. However, the means in the 202 changed very little 

between the different time points for each electrolyte, and did not approach the outer limits of the 

normal range. Tr. 83:13-87:10 (Heitjan Direct); PTX483 (Heitjan SUPREP Analysis) at 1-7; 

PDX11-44 through 11-50 (Heitjan Slides). 

62. The results of Dr. Heitjan's means analysis show that SUPREP did not produce 

any clinically significant electrolyte shifts in the patient population under the Federal Circuit's 

claim constructions. Tr. 73:20-74:1; 75:15-20; 76:9-14; 77:8-10; 78:11-17; 79:7-11; 80:15-20; 

82:2-9, 85:13-17; 87:2-10 (Heitjan Direct); Tr. 187:25-189:23 (Peura Direct); PTX483 (Heitjan 

SUPREP Analysis); PDX11-15 through 11-50 (Heitjan Slides). 

63. During the original trial, the deletion of phosphate from the colonoscopy 

preparation was an important safety factor in developing the invention while maintaining 

efficiency. Dr. Heitjan showed those results. 

64. The mean phosphate data for Visicol shows Visicol's profound effect on mean 

phosphate levels, which moved outside the normal range after administration of the drug. PTX 1 

(' 149 Patent) at 2:40-4 7; PTX431 (Visicol PDR Entry); PDX11-51 (Heitjan Slides); Tr. 90:17-

93:1, 94:15-16 (Heitjan Direct), 191:2-22 (Peura Direct). 

65. Dr. Heitjan graphed mean phosphate levels for Phospho-soda based on data from 

DiPalma 1996 (PTX393). The data shows that Phospho-soda had a profound effect on the mean 

levels of phosphate, leading to movement of the mean outside the normal range. PDX11-52 

23 

Case 3:11-cv-01341-PGS-LHG Document 461 Filed 06/01/15 Page 23 of 26 PageID: 29854
(Heitjan Slides); Tr. 93:5-94:14 (Heitjan Direct). 

66. The mean phosphate data for Visicol and Phospho-soda show that these products 

produced clinically significant electrolyte shifts in the patient population- the kinds of clinically 

significant electrolyte shifts in the patient population that the inventors of the '149 patent sought 

to avoid with their invention. PTX431 (Visicol PDR Entry); PDX11-51, 11-52 (Heitjan Slides); 

Tr. 91:24-92:9; 94:9-14 (Heitjan Direct); 191:2-22 (Peura Direct), 568:25-569:15 (Peura 

Rebuttal Direct); PTX001 ('149 patent) at 2:40-47. 

67. A comparison of the mean data from DiPalma 19961 and from BLI800-202 shows 

that Phospho-soda had a profound effect on serum phosphate, while SUPREP had a negligible 

effect, if any. While the mean moved far outside the range after Phospho-soda administration, it 

retnained within the normal range after SUP REP administration. This comparison makes clear that 

SU"PREP does not cause clinically significant electrolyte shifts in the patient population. 

PDX11-53 (Heitjan Slides); Tr. 94:17-95:11 (Heitjan Direct); 191 :2-22 (Peura Direct). 

CONCLUSIONS OF LAW 

Infringement 

68. Novel's proposed product is identical or "equivalent" to Braintree's SUPREP 

except for the flavoring. PFOF ~~41-42; ECF No. 261 (SJ Op.) at 6. Thus, assuming SUPREP 

meets the limitations of claims 15 and 18, then Novel's proposed copy infringes those claims. ECF 

No. 261 (SJ Op.) at 9-10. Utilizing Heitjan's analysis, SUPREP meets each and every limitation 

of claims 15 and 18. PFOF ~~59-171. As a result, Novel's "equivalent" ofSUPREP will, if 

marketed and sold, infringe claims 15 and 18. 

The results of the BLIS00-303 study were described in a 201_0 article by Douglas K. Rex, et al. PTX394 

("Rex 20 I 0"); Tr. 60:20-22 (Heitjan Direct). 

24 

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69. Finally, Novel will induce infringement of claims 19, 20, and 23, which claim 

methods for using the compositions of claims 15 and 18. Novel's proposed copy of SUP REP meets 

each and every limitation of claims 15 and 18. See PFOF ~~59-171. Since Novel did not appeal 

this Court's finding relevant to inducement, there is no reason to change that ruling now. Fed. Cir. 

Appeal, ECF Nos. 16, 33. 

70. Novel's post-trial brief (ECF No. 452) focuses on Braintree's failure to show 

infringement because of a laundry list of items. From the Court's view, Braintree must prove 

infringement by a preponderance of the evidence. The Federal Circuit limited the inquiry to 

whether any clinically significant electrolyte shifts occurred. Here, through the testimony of Dr. 

Peura and Dr. Heitjan, Braintree has met the burden of proof. 

Miscellaneous 

71. Novel seeks to sanction Braintree for failure to provide adverse event reports 

concerning SUPREP administration. Fed. R. Civ. P. 37. Novel argues that "the appropriate 

sanction for Braintree's failure to produce those documents should be an adverse inference that 

untoward effects are present in patients to SUP REP has been administered." (Novel Br. (ECF No. 

453) at 29.) 

72. The Court finds the failure to provide the adverse event reports to be a minor issue 

that does not require the imposition of an adverse inference. Novel has not shown any prejudice, 

surprise, or bad faith on the part of Braintree. See In Re Mercedes, 225 F.R.D. 498, 506 (D.N.J. 

2005). Moreover, such a sanction at this time after a trial and a factual hearing having been 

completed would constitute a significant but unwarranted disruption to the trial findings. Novel's 

motion to impose sanctions is denied. The attorneys for the parties conducted themselves 

professionally and cooperatively during the litigation, and both should be commended for same. 

25 

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CONCLUSION 

The Court finds that Braintree has proved infringement by the preponderance of the 

evidence. Novel's proposed copy of SUPREP meets each and every limitation of claims 15 and 

18, and will therefore infringe upon these claims if marketed and sold. Novel's proposed copy of 

SUPREP will also induce infringement of claims 19, 20, and 23, which claim methods for using 

the compositions of claims 15 and 18. Novel's request for an adverse inference is denied. An 

order will follow. 

Dated: June 1, 2015 

PETER G. SHERIDAN, U.S.D.J. 

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