CAFC affirms the meaning of "immediate" as being "within about 5–10 minutes"

The CAFC affirm D. Mass. in BRIGHAM AND WOMEN'S HOSPITAL v. PERRIGO COMPANY.

Footnote 1 mentions Cardinal Chemical:


Under Cardinal Chemical Co. v. Morton Int’l, Inc.,
508 U.S. 83 (1993), a judgment of noninfringement does not
moot a counterclaim of invalidity. However, “we retain the
discretion to limit the grounds upon which appeals are decided.”
Meds. Co. v. Mylan, Inc., 853 F.3d 1296, 1302 n.1
(Fed. Cir. 2017) (affirming judgment of noninfringement
and not reaching issues of validity). Given the facts here,
we decline to reach the issues of validity. Perrigo agrees
that affirming noninfringement would make it unnecessary to review
the patent’s validity. Reply Br. 3. And while
we recognize the “strong public interest” in resolving questions of
patent validity, Cardinal Chem., 508 U.S. at 100,
that interest here is minimal because the ’137 patent has
expired and cannot be asserted against others, there are no
pending suits involving the patent, and there are no related
patents in examination at the U.S. Patent and Trademark
Office.




Of details:



We agree with Perrigo that the district court’s JMOL
of noninfringement was proper. The parties’ dispute centers
on whether the evidence at trial was sufficient to show
that Pepcid Complete®, and by implication Perrigo’s generic product,
provides “immediate . . . relief from pain,
discomfort and/or symptoms associated with episodic
heartburn.” ’137 patent col. 7 ll. 23–25. The district court’s
construction of this term is undisputed: immediate relief
means “relief obtained from pain, discomfort and/or symptoms associated
with episodic heartburn which starts
within about 5–10 minutes following ingestion of the active
ingredients.” J.A. 1380–82; Decision, 280 F. Supp. 3d at
200. As we discuss, Brigham’s evidence was insufficient to
show immediate relief as claimed, and no reasonable jury
could have found otherwise.