Merck Sharp & Dohme Corp. v. Xellia Pharmaceuticals ApS, at al., C.A. No. 14-199 – RGA, January 6, 2015.

Andrews, J.  Markman opinion issues following argument held on December 18, 2014.

A single term is disputed: “a pharmaceutically acceptable amount of an acetate buffer effective to provide a pharmaceutically acceptable pH.” The court finds that the plain and ordinary meaning applies.  In addition, the court finds that plaintiff is not judicially estopped from taking the claim construction position it now advocates. It’s proposed claim construction is found not to be inconsistent with the position it took in previous litigation.