We reported earlier this week that the district court in Amgen v. Hospira denied Hospira’s motion for summary judgment of non-infringement of its proposed biosimilar of Epogen®/Procrit® (epoetin alfa) and granted-in-part and denied-in-part the parties’ respective motions for exclusion of expert testimony.
The district court also ruled this week on several motions in limine in advance of next week’s jury trial.
First, the court denied one of Amgen’s motions in limine, which had sought to exclude post-hypothetical negotiation facts, finding that it would be useful for the jury to consider such information to evaluate a reasonable royalty. Moreover, the court asserted that because the FDA has not yet approved Hospira’s product, this information is relevant to the safe harbor analysis.
The district court next granted “in principle” a second motion in limine by Amgen, sustaining Amgen’s objections to Hospira introducing evidence comparing the accused process to the prior art, to Amgen’s commercial process, and to examples in the asserted patent for the purpose of proving that the accused process does not infringe the claims or to show the meaning of “selectively eluting.” The court explained: Judge Andrews granted this motion “in principle” “because [he said] the line between improper comparison and implicit comparison is to some extent unavoidable given the infringement, invalidity and damages issues that are going to be raised.”
The court denied Amgen’s third motion in limine, stating that “Hospira can bring up patents that were issued, are not the patents-in-suit, and which have now expired” to the extent that “Amgen opens the door by presenting evidence about historical events.”
Hospira’s three motions in limine were dismissed as moot, denied in favor of leaving the probative value of the expert’s use of dot-blot test results to prove literal infringement for the jury, and lastly the Court denied the exclusion of documents signed off by the CEO of Hospira, because while he was CEO, this was within the scope of his employment.