Case 1:10-cv-00592-GMS Document 74 Filed 05/11/12 Page 1 of 2 PageID #: 1119

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE STIEFEL LABORATORIES, INC. and ) STIEFEL RESEARCH AUSTRALIA PTY. LTD., ) Plaintiffs,
v.
) ) ) ) ) ) ) ) )

Civil Action No. 10-592 GMS

PERRIGO ISRAEL PHARMACEUITCALS LTD. and PERRIGO COMPANY, Defendants.

ORDER CONSTRUING THE TERMS OF U.S. PATENT NOS. 6,730,288; AND 7,029,659
After having considered the submissions of the parties and hearing oral argument on the matter, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that, as used in the asserted claims of U.S. Patent Nos. 6,730,288 (the '"288 patent") and 7,029,659 (the "'659 patent"):

The '288 and '659 Patents

1. The term "occlusive agent" is construed to mean "an excipient or combination thereof that provides an occlusive layer or hydration barrier to the skin." 1 2. The term "an amount sufficient to form an occlusive layer on the skin, in use" is construed to mean "an amount sufficient to form a layer or barrier that results in reduction in trans epidermal water loss." 2

Perrigo did not offer the court a proposed construction for this term. Therefore, the court adopts Stiefel's construction, which is taken verbatim from the definition provided by the specification. U.S. Patent No. 6,730,288 (the '"288 patent") col. 2:36-37. 2 The court rejects Perrigo's proposed construction which seeks to limit the claim scope to a preferred embodiment. See Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1186 (Fed. Cir. 1998) ("[w]hile .. . claims are to be interpreted in light of the specification and with a view to ascertaining the invention, it does not follow that limitations from the specification may be read into the claims.") The claims do not require a particular method to be used to show a reduction in trans epidermal water loss, nor do they specify the amount by which it must be reduced. Furthermore, in vitro methods of testing trans epidermal water loss are not excluded simply

Case 1:10-cv-00592-GMS Document 74 Filed 05/11/12 Page 2 of 2 PageID #: 1120

3.

The term "an amount up to 50% by weight, based on the total weight of the composition" is construed to have its plain and ordinary meaning. 3

4.

The term "insoluble" is construed to have its plain and ordinary meaning. 4

Dated: May _jJ_, 2012

because the specification includes an example of measuring such water loss through in vivo methods. See Tyco Healthcare Group LP v. Mutual Pharmaceutical Company, Inc., 2009 WL 44745 at *5 (D.N.J. Jan. 5, 2009) (finding no "clear intention to limit the claims to temazepam with a surface area measured by the equipment and procedure as stated in Example 1 of the specification.") 3 "In some cases, the ordinary meaning of claim language as understood by a person of skill in the art may be readily apparent even to lay judges, and claim construction in such cases involves little more than the application of the widely accepted meaning of commonly understood words." Phillips, 415 F.3d at 1314 (citing Brown v. 3M, 265 F.3d 1349, 1352 (Fed. Cir. 2001.)) 4 !d.