Opinion
Civil No. 01-352 ADM/AJB
December 19, 2003
Jacob M. Holdreith, Esq., Kimberly G. Miller, Esq., Robins, Kaplan, Miller, Ciresi L.L.P., Minneapolis, MN, for and on behalf of Plaintiff
Mark Robbins, Esq., Upsher-Smith Laboratories, Inc., Maple Grove, MN, for and on behalf of Plaintiff
Randy G. Gullickson, Esq., Anthony Ostlund Baer, P.A., Minneapolis, MN, for and on behalf of Defendants
Glenn K. Beaton, Esq., Gibson, Dunn Crutcher L.L.P., Denver, CO, for and on behalf of Defendants
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Defendant Pan American Laboratories, Inc.'s ("Defendant" or "Pan Am") Motion for Summary Judgment [Docket No. 73] and Plaintiff Upsher-Smith Laboratories, Inc.'s ("Plaintiff' or "Upsher-Smith") Motion to Strike [Docket Nos. 87, 108] were argued before the undersigned United States District Judge on October 9, 2003. Defendant moves for summary judgment and asks the Court to dismiss Count I of Plaintiff's Amended Complaint [Docket No. 3], and to declare Plaintiff's patent invalid. Because Plaintiff filed a Second Amended Complaint [Docket No. 128] while the current Motion was pending, the Court applies Defendant's Summary Judgment Motion to this more recent Complaint, as Count I remains unchanged. The Court also treats Defendant's Motion as one for Partial Summary Judgment, as Plaintiff added new claims in the Second Amended Complaint. Plaintiff requests an order striking Defendant's non-infringement defense and establishing that Defendant is infringing Plaintiff's patent ("`624 patent"). For the reasons explained below, Defendant's Motion for Summary Judgment is granted and Plaintiff's Motion to Strike is denied. Additionally, Defendant is ordered to comply with the Court's Pretrial Scheduling Order of May 29, 2003 [Docket No. 66], to assign a meaning to "antioxidants" and to state whether its accused product contains "antioxidants."
II. BACKGROUND
This dispute concerns various patents issued for vitamin supplements that contain folic acid and vitamin B12, a combination that potentially lowers homocysteine levels in blood. Elevated amounts of homocysteine are associated with vascular diseases such as strokes and heart attacks. See Gullickson Aff. of 6/13/03 Ex. A (`624 patent). On October 17, 1995, the late Dr. Victor Herbert ("Dr. Herbert") filed a patent application that describes a vitamin supplement consisting of folic acid and vitamin B12 that is "essentially free of antioxidants." See id. Ex. A. This formulation may also contain B6, a non-antioxidant vitamin. While the folic acid-B12 combination was known before Dr. Herbert applied for the `624 patent, the United States Patent and Trademark Office ("PTO") issued the `624 patent because it specifically excludes antioxidants from the vitamin composition. See `624 Patent col. 1, 11. 54-55, Ex. B (Letter from Patent Trademark Office to Olnstein of 1/22/99 at 2). The `624 patent's specification notes that antioxidants destroy some folic acid and vitamin B12, consequently reducing the combination's efficacy. `624 Patent col. 1, 11. 54-59. The specification explains further that "essentially free" means that the vitamin supplement "must not contain an amount of antioxidants which would tend to damage and inactivate some of the vitamin B12 and/or folic acid of the vitamin supplement." Id. col. 2, 11. 48-57.
In September 1999, Defendant Pam Am, a pharmaceutical company, began manufacturing Foltx, a vitamin supplement that contains folic acid and vitamin B12. See Dritsas Aff. ¶¶ 7-8. Upsher-Smith alleges that Foltx infringes the `624 patent, and initiated a patent infringement suit in February 2001.
In response, Pan Am asserts a non-infringement defense and also claims that the `624 patent is invalid, alleging that the patented composition of folic acid and vitamin B12 that is essentially free of antioxidants existed in prior art. Id.; see also Ans. ¶¶ 70-77. This prior art includes a series of patents ("professors' patents") licensed to Pan Am that were issued to two University of Colorado professors. The professors discovered that a mixture of folic acid and B12 can reduce homocysteine and applied for their first patent concerning this invention on December 29, 1992. See Gullickson Aff. of 6/13/03 Ex. C (professors' patents). They were issued a total of five patents over the next eleven years. The abstracts for all five patents describe "[a] method for orally administering vitamin preparations . . . which combine[s] vitamin B12 . . . and folic acid (folate) . . . for preventing and treating . . . elevated serum homocysteine . . . levels." Additionally, the patents contain claims that outline specific formulations of folate and vitamin B12, some which add vitamin B6 as well. The patents are silent regarding antioxidants. See id. The professors' patents were not disclosed during the `624 patent's prosecution, and the PTO did not review the professors' patents before issuing the `624 patent to Dr. Herbert. See id. Ex. B. Before purchasing the `624 patent, Plaintiff Upsher-Smith unsuccessfully attempted to license the professors' patents. See Alien Decl. ¶¶ 8-14; O'Neill Aff. ¶¶ 11-13, Ex. A.
The professors' patents include United States Patent Nos. 5,563,126; 5,795,873; 6,207,651; 6,297,224, and 6,528,496. See Gullickson Aff. of 6/13/03 Ex. C (professors' patents).
In addition to the prior art of the professors' patents, Pam Am claims that the folic acid-B12, essentially free of antioxidants composition was also present in a European patent application ("European patent") that was published on May 4, 1994. See Gullickson Aff. of 8/11/03 Ex. A (European patent). The European patent describes a vitamin supplement containing folic acid and B12, and optionally, antioxidants. The supplement may also contain vitamin B6. Id. at 18, 11. 50-55. The European patent lists some formulations that include antioxidants, and others that do not. Id. at 4, 11. 24-33, 37-44; 7, 11. 1-3; 9, 11. 9-50. Additionally, claim 23 indicates that antioxidants may be added to any of the compositions listed in claims 1-22. See id. at 21, 11. 6-8. As with the professors' patents, the PTO did not review the European patent before issuing the `624 patent, nor was it disclosed to the PTO during the `624 patent's prosecution. See Gullickson Aff. of 6/13/03 Ex. B (prosecution history).
The European patent application's application number is 93114762.3, and its publication number is 0595005A1. See Gullickson Aff. of 8/11/03 Ex. A (European patent).
III. DISCUSSION
Pan Am moves for summary judgment on the issue of invalidity of claims 1, 2, 5, and 8-10 of the `624 patent. Upsher-Smith counters by moving to strike Pan Am's non-infringement defense and to establish that Pan Am is infringing the `624 patent, arguing that Pan Am has not disclosed the factual basis for its non-infringement defense as required by court order.
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986);Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). The nonmoving party may not "rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial." Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
B. Legal Framework for Invalidating Patent Claims
Patent claims are presumed valid. 35 U.S.C. § 282. Further, each claim is "presumed valid independently of . . . other claims" and "dependent . . . claims shall be presumed valid even though dependent upon an invalid claim." Id.; see Apple Computer. Inc. v. Articulate Sys., Inc., 234 F.3d 14, 24 (Fed. Cir. 2000). This presumption can be overcome, however, by clear and convincing evidence of invalidity. See Nat'l Presto Indus., Inc. v. W. Bend Co., 76 F.3d 1185, 1189 (Fed. Cir. 1996). Claims are invalid unless they are both novel and non-obvious as required by §§ 102 and 103 of the Patent Act ("Act"). See 35 U.S.C. § 102-03.
1. Novelty Requirement under § 102
Patent claims that are anticipated by prior art fail to meet the novelty requirement of § 102 of the Act and are consequently invalid. See 35 U.S.C. § 102. Section 102 states the following:
A person shall be entitled to a patent unless —
(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or
(b) the invention was patented or described in a printed publication in this or a foreign country . . . more than one year prior to the date of the application for patent in the United States, or
. . . .
(e) the invention was described in . . . (2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent . . .; or
. . . .
(g) . . . (2) before such person's invention thereof, the invention was made in this country by another inventor who had not abandoned, suppressed, or concealed it.35 U.S.C. § 102.
The first step in an anticipation inquiry is to construe the allegedly invalid claims. See Trintec Indus., Inc. v. Top — U.S.A. Corp., 295 F.3d 1292, 1294 (Fed. Cir. 2002). These claims are then compared to the prior art reference. For a claim to be invalid on anticipation grounds, a single prior art reference must either expressly or inherently disclose all limitations of the claimed invention in a way that enables one "skilled in the art to make the anticipating subject matter." PPG Indus., Inc. v. Guardian Indus. Corp., 75 F.3d 1558, 1566 (Fed. Cir. 1996); see Schering Corp. v. Geneva Pharm., Inc., 339 F.3d 1373, 1377 (Fed. Cir. 2003). However, "if granting patent protection on the disputed claim would allow the patentee to exclude the public from practicing the prior art, then that claim is anticipated, regardless of whether it also covers subject matter not in the prior art." Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1346 (Fed. Cir. 1999).
2. Non-obviousness Requirement under § 103
Valid patent claims must also be non-obvious as defined by § 103, which states the following:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. . . .35 U.S.C. § 103(a).
To establish invalidity on obviousness grounds, the moving party must show by clear and convincing evidence that all claim limitations are present in a combination of prior art references. See McGinley v. Franklin Sports, Inc., 262 F.3d 1339, 1351 (Fed. Cir. 2001). The party must also prove that motivation existed to combine these references at the time when the disputed invention was created. See Gambro Lundia AB v. Baxter Healthcare Corp., 110 F.3d 1573, 1579 (Fed. Cir. 1997) (holding that an "absence of such a suggestion to combine is dispositive in an obviousness determination"). In analyzing whether patent claims are obvious, courts should consider several factors including: (1) the scope and content of the prior art; (2) the differences between the claimed invention and the prior art; (3) the level of ordinary skill in the art; and (4) objective support of non-obviousness like commercial success and long-felt but unresolved need. See Graham v. John Deere Co., 383 U.S. 1, 17(1966).
C. The Allegedly Invalid `624 Patent Claims
Defendant seeks summary judgment, arguing that several claims in Plaintiff's `624 patent are invalid because they are anticipated and obvious based on prior art. Plaintiff responds that the claims are valid because the prior art, while disclosing the folic acid-B12 formulation, did not specifically exclude antioxidants.
1. Anticipation Analysis
Defendant asserts first that the `624 patent does not meet § 102's novelty requirement. The starting point in § 102 anticipation analysis is to construe the language of the disputed claims, here claims 1, 2, 5, and 8-10. See Trintec Indus., 295 F.3d at 1294. Claim 1 outlines four compositions of a vitamin supplement "consisting of folic acid and vitamin B12, with one formulation limited to the folic acid-B12 combination, a second adding B6, a third including a non-antioxidant vitamin, and a fourth containing additional non-antioxidant vitamins.See `624 Patent col. 4, 11. 21-31. Claim 2 states an alternative formulation to the second composition of claim 1. Id. col. 4, 11. 32-35. Claim 5 describes a vitamin supplement comprised of folic acid and B vitamins, that is essentially free of antioxidants and other vitamins, and does not include amino acids or antimicrobial agents. Id. col. 4, 11. 44-51. Finally, claims 8-10 further limit the contents of the vitamin composition and exclude nutrient minerals. Id. col. 4, 11. 60-65. The language at issue for all of these claims, "essentially free of antioxidants," is defined in the `624 patent's specification, and means that "the vitamin compound . . . must not contain an amount of antioxidants which would tend to damage and inactivate some of the vitamin B12 and/or folic acid. . . ." Id. col. 2., 11. 53-57.
Defendant argues that the professors' patents and the European patent anticipate these claims because both describe a vitamin supplement that contains folic acid and B12, with some formulations adding B6, that is essentially free of antioxidants. Starting with the earliest of the professors' patents, patent no. 5,563,126 ("`126 patent") clearly constitutes prior art to the `624 patent because it was filed on December 29, 1992, almost three years before the `624 patent was filed. 35 U.S.C. § 102(e); see Gullickson Aff. of 6/13/03 Exs. A C. The `126 patent is also evidence of what was "known or used by others in this country" before the `624 patent application was filed, and illustrates an invention "made in this country by another" that predates the `624 patent. See 35 U.S.C. § 102(a)(g); Gullickson Aff. of 6/13/03 Exs. A C. The abstract to the `126 patent outlines a vitamin preparation that combines vitamin B12, folic acid, and optionally vitamin B6, for treatment of elevated homocysteine levels. See Gullickson Aff. of 6/13/03 Ex. C. Additionally, claim 1 describes a formulation containing cobalamin (B12), folate (folic acid), and B6. See `126 patent col. 26, 11. 46-52. Claim 5 outlines a variation that includes cobalamin (B12) and folate (folic acid). See id. col. 26, 11. 61-63. The `126 patent does not mention antioxidants, amino acids, antimicrobial agents, or nutrient minerals. See `126 patent.
Defendant claims that all five professors' patents are "of such a date" that they constitute prior art to the `624 patent. See Def.'s Reply Mem. at 1. However, Defendant fails to clearly explain how patents Nos. 5,795,873, 6,207,651, 6,297,224, and 6,528,496, all filed after the `624 patent, are continuations of the original `126 application, or to link these patents to the `126 patent. Therefore, the Court limits its anticipation analysis of the professors' patents to the `126 patent.
This language from the `126 patent anticipates the disputed claims in the `624 patent because it discloses all limitations of the claimed invention. First, the `126 patent describes three of the four alternative formulations of claim 1, as it teaches an antioxidant-free vitamin composition that contains (a) B12 and folic acid, (b) B12, folic acid, and B6, and (c) B12, folic acid, and a non-antioxidant vitamin, B6. Id.;see also Gullickson Aff. of 6/13/03 Ex. A. Claim 1 is therefore invalid, because the prior art need only anticipate one of the claim's four variations to invalidate the entire claim. See Donald S. Chisum, Chisum on Patents § 8.06[2][f] (1998) (explaining that the novelty and nonobviousness of a claim with aMarkush group is determined as if the claim were generic). The `126 patent similarly anticipates claim 2, because claim 2 merely limits the composition to folic acid, B12, and B6. Claim 5 is also invalid though it adds negative limitations, requiring that the composition be "essentially free of antioxidants," and excluding amino acids and antimicrobial agents. The `126 patent discloses this formulation because in describing a combination "comprised of" folic acid/ B12/ B6 combination, it does not mandate inclusion of additional ingredients. See Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (1997) (explaining that "[c]omprising is a term of art used in claim language which means that the named elements are essential, but other elements may be added and still form a construct within the scope of the claim."). Finally, claims 8-10, dependent on claims 1, 2, and 5 consecutively, are invalid as well. While all three add the limitation that the composition not contain nutrient minerals, the `126 patent does not require addition of this element. See Gullickson Aff. of 6/13/03 Exs. A C.
A Markush group is a type of claim that includes subgroups that provide alternative formulations of the claimed invention. See id. § 8.06[2].
Plaintiff argues that the `126 patent does not contain all the limitations of the `624 patent because it does not specifically exclude antioxidants or recognize the implications of their inclusion. However, nothing in the `126 patent requires adding antioxidants or any other substances besides folic acid, B12, and optionally B6. While the `126 patent uses the open-ended "comprising" in its claims, this does not mean that the formulas it describes must include antioxidants. See Genentech, Inc. at 501. The `126 patent discloses a vitamin composition whose formulation could be limited to only folic acid and B12, or folic acid, B12, and B6. Further, that the "comprising" language allows the possible addition of other ingredients, or that the complications of adding antioxidants were not understood is irrelevant, because granting patent protection on the disputed claims in the `624 patent would "allow the patentee to exclude the public from practicing the prior art," here the vitamin formulations described in the `126 patent. See Atlas Powder Co., 190 F.3d at 1346. This is true regardless of whether the `624 patent "also covers subject matter not in the prior art." Id.
Defendant claims that the European patent also anticipates the disputed claims in the `624 patent. The European patent was published on May 4, 1994, and is therefore prior art under § 102(b), as the `624 patent application was not filed until October 17, 1995. 35 U.S.C. § 102(b); Gullickson Aff. of 8/11/03 Ex. A. The European patent specification describes a vitamin composition containing folic acid and B12, and optionally antioxidants. One variation also includes vitamin B6, and while some compositions add antioxidants, they are absent from other suggested formulations. Gullickson Aff. of 8/11/03 Ex. A at 4, 11. 24-33, 37-44; 7, 11. 1-3; 9, 11. 9-50; 18, 11. 50-55. Claim 23 states that antioxidants may be added to any of the compositions listed in claims 1-22. See id. at 21, 11. 6-8.
The European patent anticipates the `624 patent because it teaches all of the limitations in the disputed claims. First, the European patent invalidates claim 1 of the `624 patent because it discloses three of the four listed formulations. See id. at 18, 11. 50-55; 20, 11. 44-46; see also Chisum on Patents § 8.06[2][f]. The European patent also anticipates claim 2, as both describe a variation containing folic acid, B12, and B6. Gullickson Aff. of 8/11/03 Ex. A at 18, 11. 50-55. Claim 5, which specifically excludes antioxidants, antimicrobial agents, and amino acids, is invalid as well because the European patent optionally adds antioxidants to its formulations, clearly indicating that antioxidants are not essential elements. Id. at 21, 11. 4-9. Additionally, nothing in the European patent suggests that antimicrobial agents or amino acids are necessary ingredients. Finally, the European patent also anticipates claims 8-10 because it does not require inclusion of nutrient minerals. See Gullickson Aff. of 8/11/03 Ex. A.
2. Obviousness Analysis
Defendant also argues that the `624 patent's disputed claims are obvious under § 103 based on prior art. This prior art includes the `126 patent and the European patent discussed above, but also numerous articles discussing vitamin supplements and antioxidants. See Gullickson Aff. of 6/13/03 Ex. E. Defendant claims these sources reveal that antioxidants harm vitamin B12, and that B12 is preserved by omitting antioxidants.
Based on these materials, Defendant fails to show, by clear and convincing evidence, that a person possessing ordinary skill in vitamin supplements research would know that antioxidants harm B12 in vitamin supplements, and that antioxidants should be excluded from folic acid-B12 compositions. See 35 U.S.C. § 103(a); Nat'l Presto Indus., 76 F.3d at 1189. Starting with the `126 patent, while it does not require including antioxidants, it does not expressly omit them either. The `126 patent therefore provides little information about potential harm or detriment from adding antioxidants to the formulation. Gullickson Aff. of 6/13/03 Ex. C. The European patent similarly does not recognize the antioxidant problem, as it specifically allows their inclusion in some formulations. Gullickson Aff. of 8/11/03 Ex. A. Several articles cited by Defendant suggest that antioxidants break down B12 in very specific situations. However, Defendant has not shown that one with ordinary skill in the art would understand that the same complication can occur in vitamin supplements, or that removing antioxidants is the correct method for preserving B12. Gullickson Aff. of 6/13/03 Ex. E. This is especially true because industry practice at the time favored multi-vitamin tablets. See Holdreith Aff. Ex. 4 at 3. Further, Defendant does not provide evidence of a motivation for combining the prior art references. See Gambro Lundia AB, 110 F.3d at 1579.
While these sources do not prove that researchers fully appreciated the risks to B12, or viewed eliminating antioxidants as a remedy for the breakdown problem, the `126 patent and the European patent do disclose the specific formulations listed in the `624 patent. See Gullickson Aff. of 6/13/03 Exs. A C; Gullickson Aff. of 8/11/03 Ex. A. As explained in the anticipation analysis above, both patents reveal vitamin compositions containing folic acid and B12, with some formulations including B6, a non-antioxidant vitamin. Neither the `126 patent nor the European patent requires adding antioxidants, amino acids, antimicrobial agents, or nutrient minerals. Therefore, claims 1, 2, 5, and 8-10 in the `624 patent are invalid under § 103(a), because the compositions they describe would have been obvious to a person having ordinary skill in the art at the time the `624 patent was filed. 35 U.S.C. § 103(a).
Both the `126 patent and the European patent disclose the vitamin compositions listed in claims 1, 2, 5, and 8-10 in the `624 patent. Therefore, Defendant's Motion for Summary Judgment is granted and the claims are ruled invalid because they are neither novel nor non-obvious as required by §§ 102(a)(b)(e)(g) and § 103(a) of the Act.
D. Plaintiff's Motion to Strike
Plaintiff requests an order under Rules 16 and 37 of the Federal Rules of Civil Procedure striking Defendant's non-infringement defense and making a determination that Defendant is infringing the `624 patent.
Rule 16(f) allows courts to impose sanctions against parties who disobey scheduling orders or fail to participate in good faith. Fed.R.Civ.P. 16(f). Possible sanctions are listed in Rule 37(b)(2)(B), (C), and (D), and include "striking out pleadings or parts thereof. . . ." Fed.R.Civ.P. 37(b)(2)(C). Generally, Rule 37(b) sanctions striking an affirmative defense are imposed in "strictly limited circumstances," where the sanctioned party has acted in bad faith. Dependant v. Flastaff Brewing Co., 653 F.2d 1208, 1213 (8th Cir. 1981).
In support of its Motion, Plaintiff alleges that Defendant is violating a Pretrial Scheduling Order dated May 29, 2003 ("Order"), that compelled Defendant to disclose the basis for its non-infringement defense by July 1, 2003. The Order required Defendant to specify any elements missing from its accused product, and to "set forth in detail the basis that the element is absent." Order at 1. Defendant counters that it has "done everything reasonably possible" to comply with the Order, and that Rule 37(b) sanctions are "drastic and unnecessary." Def's Mem. in Opp. at 5-9.
While Rule 37(b)(2)(C) grants the Court authority to strike Defendant's non-infringement defense, Defendant's behavior does not warrant this harsh sanction. Unlike the defendant in Dependahl whose affirmative defenses and counterclaims were stricken, Pan Am has not exhibited a continuous pattern of delay and obstruction. 653 F.2d at 1213 (noting that defendant changed counsel several times in an attempt to slow litigation and avoid discovery). Because Rule 37(b) sanctions are reserved for extreme infractions, Plaintiff's Motion to Strike is denied. However, Pan Am's contention that it must await the Court's construction of "antioxidant" before complying with the Order seems disingenuous. This position is inconsistent with Pan Am's arguments in its Motion for Summary Judgment that rely on a common definition of "antioxidant" in discussion of the `624 patent and prior art. Pan Am's statement that the Order does not apply to antioxidants is strained. Pan Am fixates on semantics, but the Order's point is clear. Defendant Pan Am is ordered to comply immediately with the Pretrial Scheduling Order dated May 29, 2003. Additionally, Defendant is ordered to define "antioxidants," and to state whether its accused product Foltx contains "antioxidants."
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendant's Motion for [Partial] Summary Judgment [Docket No. 73] is GRANTED.
2. Count I of Plaintiff's Second Amendment Complaint [Docket No. 128] is DISMISSED WITH PREJUDICE.
3. Claims 1, 2, 5, and 8-10 of Plaintiff's `624 patent are ruled invalid under 35 U.S.C. § 102(a)(b)(e)(g) and § 103(a).
4. Plaintiff's Motion to Strike [Docket Nos. 87, 108] is DENIED.
5. Defendant is ORDERED to comply with the Pretrial Scheduling Order dated May 29, 2003 [Docket No. 66] by January 8, 2004, and to specify the elements on Plaintiff's Claim Chart that Defendant admits are present in its accused product, and those elements Defendant contends are absent in its accused product. Defendant must set forth in detail the basis for its contention that an element is absent.
6. Defendant is ORDERED to assign a meaning to "antioxidants" and to state whether its accused product contains said "antioxidants." Defendant shall provide Plaintiff with this information by January 8, 2004.