Case 1:11-cv-01077-RGA Document 272 Filed 08/16/13 Page 1 of 2 PageID #: 4295

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE NOVARTIS PHARMACEUTICALS CORPORATION, et al., Plaintiffs,
V.

Civil Action No. 11-1077-RGA

ACTA VIS SOUTH ATLANTIC LLC, et al., Defendants.

ORDER DENYING MOTION TO PRECLUDE

Defendant Par has submitted a motion to prelude the expert testimony of Dr. Martyn C. Davies as unreliable and not fitting the issues in the case. (D .I. 251 ). I think Plaintiff identifies three areas of concern: (1) the "forced degradation" or "stress" testing; (2) whether acetaldehyde or anything else is an antioxidant; and (3) why Dr. Davies does not address, or did not perform, other techniques. I am not so sure that the second is really a Daubert issue, and I do not think the third is. The first clearly is. While I acknowledge the "gate-keeper" function of a federal trial judge, it is not so important that it be done pretrial when the trial is a bench trial. See In re

Salem, 465 F.3d 767, 777 (7 1h Cir. 2006); United States v. Brown, 415 F.3d 1257, 1269-70 (11th
Cir. 2005); Warner Chilcott Labs. v. Impax Labs., Inc., 2012 WL 1551709, *23-24 (D.N.J. Apr. 30, 2012). 1 Live testimony and cross-examination are much more likely to result in a correct decision from me about whether the expert is giving appropriate scientific testimony. Thus,

For the composition claims (that is, claims I, 2, and 7 of the '031 patent), if the limitation is that the ANDA product must contain "about 0.01 to about 0.5 percent by weight of an antioxidant" and the testimony is that the weight of the antioxidant in Par's product is 0.0016 percent, or less, it will be an interesting question whether there is literal infringement of those claims. See Cohesive Techs., Inc. v. Waters Corp., 543 F.3d 1351, 1368 (Fed. Cir. 2008).

Case 1:11-cv-01077-RGA Document 272 Filed 08/16/13 Page 2 of 2 PageID #: 4296

while I am denying the motion for now, my understanding is that Defendant Par challenges the admissibility of the testing, and the conclusions drawn therefrom. Defendant may preserve this objection at trial by making an objection2 at the appropriate times during Dr. Davies' testimony. Failure to do so at the appropriate time will result in the objection being waived. The Court will consider granting a continuing objection. The Court will only consider evidence actually adduced at trial (whether through cross-examination or testimony from other witnesses) in ruling on any renewed motion. The Motion to Preclude (D.I. 251) is DENIED.

To wit, "Objection. Daubert."