Issue Preclusion Means One Strike And You Are Out

While issue preclusion means one strike and you are out, a court might need to call a few balls before calling the strike that ends the case.

In Horizon Medicines LLC, et al. v. Dr. Reddy's Laboratories, Inc. et al., No. 15-cv-3324, D.I. 468, 17 (D.NJ Feb. 24, 2022), Judge Stanley Chesler of the District of New Jersey held that two Orange Book (OB)-listed patents covering Vimovo® (esomeprazole magnesium; naproxen) were invalid for lack of written description. The holding was based on issue preclusion from an earlier Federal Circuit decision addressing to two related OB-listed patents having different claims. But it took defendant Dr. Reddy's Laboratories (“DRL”) two unsuccessful summary judgment motions before getting it right on the third try.