Warner-Lambert asserts that Teva's capsule and tablet products infringe the '482 patent. Teva moves for summary judgment of noninfringement on the ground that its capsule and tablet products contain adjuvants excluded from claim 7 of the '482 patent.
A. Literal Infringement
   Literal infringement is determined in a two-step process. First, a court must determine a claim's acquired meaning and scope. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995) (in banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). Second, the claim as construed must be compared to the accused product to ascertain whether it "reads" on the accused product. Southwall Technologies, Inc. v. Cardinal IG Co., 54 F.3d 1570, 1575 (Fed.Cir.1995). "To establish literal infringement, every limitation set forth in a claim must be found in an accused product, exactly." Id. Where there is no dispute as to any relevant facts regarding the accused product, literal infringement is solely a matter of claim construction. Athletic Alternatives, Inc., 73 F.3d at 1578.
1. Claim Construction FN5
FN5. Warner-Lambert argued in its brief that the Court should hold a Markman hearing. At oral argument on the pending summary judgment motions, all parties, including Warner-Lambert, agreed that a separate Markman hearing was not necessary.
The operative claim language of claim 7 is "consisting essentially of ... one or more pharmaceutically acceptable adjuvants that do not promote conversion of more than 0.2% by weight of the gabapentin to its corresponding lactam form when stored at 25 (deg.)C and an atmospheric humidity of 50% for one year." At issue is whether that language should be construed to exclude at least the eight exemplary lactam- promoting adjuvants referred to in the patent as adjuvants that "reduce the stability" of gabapentin compounds and which "should be avoided." ('482 Patent, Col. 5, ll. 5-10). Teva urges a construction of claim 7 excluding the eight adjuvants, relying on the specification and prosecution history. Warner-Lambert argues that claim 7 broadly covers any "pharmaceutically acceptable adjuvants," FN6 provided that their use meets the 0.2% limitation on lactam formation. Warner-Lambert further argues that even if the term "avoid" in the specification were construed to mean "do not use," that limitation cannot be imported into claim 7 for purposes of limiting the scope of the claimed invention.
FN6. Warner-Lambert invokes the following standard dictionary definitions: "Adjuvants" is defined as a "substance which is added to a drug formulation to improve the manufacturing process, product quality or pharmacological action; example, methyl cellulose to aid in suspending drug particles in a liquid." (Lorenz Decl., Ex. 8, Dictionary of Pharmacy 10 (1986)). "Pharmaceutics" refers to "that branch of pharmacy involving the study of the chemical, physical and biological factors which influence formulation, manufacture, stability and efficacy of dosage forms." ( Id. at 229). The term "acceptable" has been defined as "capable or worthy of being accepted"; "barely satisfactory or adequate' " and "meeting only minimum requirements; barely adequate." ( Merriam-Webster's Collegiate Dictionary 6 (10th ed.1993)).