bausch and lomb vs alcon labs
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Bausch and lomb vs alcon labs

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A claim is not fatally indefinite for failing specifically to delineate the point at which the change in physical phenomenon occurs" , cert. Likewise, while Alcon cites the oft-repeated statement that "if the language is as precise as the subject matter permits, the courts can demand no more," Shatterproof Glass, F. Thus, simply because claims could be framed in terms of specific numbers does not mean that they must be.

The bottom line is whether one of ordinary skill in the art would understand the claims, and as stated, Alcon has presented no evidence affirmatively showing that the ' patent fails to meet that standard. Iglewski's statements being taken out of context. When the entire course of events in the PTO proceedings are viewed as a whole, most if not all of those alleged inconsistencies and self-contradictions disappear.

The first alleged definition is in Alcon's words that a "combined solution with an osmotic value greater than mOsm. The language in the ' patent upon which Alcon bases that assertion, however, nowhere uses the words "substantially inhibit. The patent does not equate any of those osmolality levels with antimicrobial levels that are or are not "substantially inhibited," nor does the evidence compel an inference to that effect. That is not to say that these statements have no relevance to the phrase "does not substantially inhibit.

But to read these statements as defining "does not substantially inhibit" is, at the very least, not something that the court can do on a motion for summary judgment.

The third is: "A combined solution with activity of at least 3 log orders against S. As with the first alleged definition, both of these are based on text that has been extracted from the ' patent, which states at one point:. Elsewhere, the ' patent incorporates by reference the following statement from its prior Patent No. Again, these are simply statements that have been taken out of context and which make no reference at all to the term "substantially inhibit.

The fourth alleged definition is the first which actually purports to define the claim. In her August 8, declaration in response to the first Office Action that rejected the claims of the ' patent, Dr.

Alcon contends that in her subsequent declaration in response to the second Office Action, Dr. Iglewski then offered two other, different interpretations.

In that declaration, dated March 18, , she stated at one point that. Alcon views all of these statements as setting forth different, inconsistent definitions of "substantially inhibit. The difficulty with Alcon's argument, however, is that it presumes that there can be one and only one way to determine whether antimicrobial activity is substantially inhibited. By way of analogy, one could say that water will feel cold to the touch if ice is beginning to form on its surface, that water will feel cold if it is cold enough to turn one's skin blue and numb, that water feels cold at 33 F, and so on.

Those statements, however, need not be viewed as mutually exclusive, nor does it mean that the average person would not understand what another person means when he says that certain water feels cold. While this everyday example is not meant to suggest the degree of definiteness required of a patent claim, the point is that just because Dr.

In particular, the latter two of these three alleged definitions advanced by Dr. Iglewski were simply meant to distinguish two different combinations of prior art products ReNu cleaner and solution, and Opti-Zyme cleaner and Opti-Soft solution by stating that the decrease in antimicrobial activity exhibited by those products when they were combined would have been understood by those skilled in the art to have exhibited substantially inhibited antimicrobial activity.

These include: Patent Application Serial No. The ' application is a divisional application of the ' application. Alcon describes the European application as a "counterpart" application to the ' patent.

As with many of Alcon's other arguments, this might prove persuasive to the finder of fact, but my task here is to determine whether there are any issues of fact, and I believe that such issues do remain. Garlock, Inc. A valid patent cannot be rendered indefinite by events that occur after its issuance. Exxon Corp. Ohio Moreover, it bears repeating that, despite language in the case law about claims being "as precise as the subject matter permits," the ultimate question is whether the language is precise enough to allow one skilled in the art to understand what is claimed.

Amgen, F. If so, "[m]athematical precision should not be imposed for its own sake In view of the opinion testimony of Dr. Iglewski that a person skilled in the art would understand what the phrase "does not substantially inhibit" means, and Alcon's failure to present contrary expert testimony, I find that this evidence relating to other patent applications does not demonstrate that the ' patent is indefinite as a matter of law.

Iglewski has simply said that one skilled in the art would understand that a difference of greater than one log order in performance represents a "considerable, ample, or large" degree of inhibition, and hence a "substantial" inhibition.

Even if that is true, however, I read Dr. Iglewski's statement that a person of ordinary skill in the art would recognize that a difference of greater than one log order represents a substantial inhibition as indicating that, indeed, the difference has to be large enough to be statistically significant in order to be "substantial.

As for Alcon's assertion that nothing in the ' patent requires that assessing whether inhibition is substantial requires a comparison of antimicrobial activity with and without enzyme present as opposed to simply measuring the antimicrobial properties of the combined solution , I find that to be a matter more pertinent to claim construction than to definiteness. For all these reasons, then, Alcon's motion for summary judgment of indefiniteness is denied at this time.

Since indefiniteness is a question of law, however, see Credle v. Bond, 25 F. Safety Travel Chairs, Inc. Intermedics Orthopedics, Inc. In light of the underlying factual issues that preclude the entry of summary judgment, I am therefore setting this case down for an evidentiary hearing prior to trial, at which the court will take testimony regarding whether persons of ordinary skill in the art would understand the claims, and if so, what they would understand them to mean.

Each of these counterclaims is asserted under New York law pursuant to this court's supplemental jurisdiction under 28 U. The factual basis for all three of these counterclaims is essentially the same. Alcon alleges that Dr. This information allegedly related to a number of matters, including: Alcon's proprietary antimicrobial agent, Polyquad; the use of Polyquad in systems for cleaning and disinfecting contact lenses such as Alcon's OPTI-SOFT and OPTI-ZYME system ; the effect of ionic strength [5] on the antimicrobial activity of Polyquad; liquid enzyme products; and the use of the "Ninhydrin Protein Assay," which is a method of quantifying the amount of protein present on a contact lens.

The parties agree that New York's three-year statute of limitations for actions to recover damages for injury to property applies to these claims. There is some dispute about when these claims arose, however. If that factual assertion is correct, then the limitations period would have expired on August 29, Alcon did not assert its counterclaims until December 21, In response, Alcon contends that the trade secrets may be "embodied" in the European application, but are not disclosed there.

Minno and several coauthors published details of the assay in a scientific journal, Optometry and Vision Science. See C. In addition, Alcon urges this court to adopt a "discovery rule," under which the limitations period would not begin to run until Alcon's discovery of its causes of action. Minno's role in the development of the invention of the ' patent. If such a rule were applied here, under New York's "discovery" provision, C.

Alcon concedes, however, that it has no case law from New York applying a discovery rule to trade secret or unfair competition claims, and in fact at least one district court within this state has rejected application of such a rule to an action for misappropriation of trade secrets. International Business Machines Corp. Lastly, Alcon argues that even if the court decides that Alcon did not assert its trade secret and unfair competition claims timely, under New York's "recoupment doctrine," see C.

In the absence of any authority from New York state courts supporting the application of a discovery rule to these counterclaims, I decline to apply such a rule here. It is clear that under the law of both New York and the Second Circuit, factual issues relating to statute of limitations matters can preclude summary judgment on that ground.

Guido, 41 F. Beech-Nut Nutrition Corp. Orentreich, 64 N. William Morris Agency, Inc. Louise Wise Services, A. Upon my review of the record, I believe that this is a matter best left to a jury to decide. The brochure states that the objective of the test was "[t]o establish the range of protein deposits that are found on human-worn polymacon lenses.

It also states that "[l]enses were In his deposition during litigation between Alcon and Allergan, Inc. Quintana was shown this brochure. He testified that the Ninhydrin Protein Assay referred to in the brochure was the same one "developed by Dr.

Minno while he was working at Alcon Kline Docket Item at Under New York law, when a trade secret misappropriation claim accrues depends on what the party alleged to have committed the misappropriation did with the information.

If a party misappropriates and publicly discloses a trade secret, the claim accrues upon disclosure. If, however, the party "keeps the secret confidential yet makes use of it to his own commercial advantage, each successive use constitutes a new actionable tort for purposes of the statute of limitations.

Control Systems, Inc. Lockformer Co. Although the issue is a close one, viewing the record in the light most favorable to Alcon, I believe that this aspect of Alcon's counterclaims should also go to trial. In addition, while I am not convinced that the brochure's lack of detail describing the assay means that it was not a disclosure, on balance I think it better that this issue be decided by a jury, particularly since the other bases for these two counterclaims are going to trial.

As for the other grounds for Alcon's motion to dismiss the first two counterclaims, I find that there are issues of fact relating to these grounds as well. After reviewing the evidence presented by both sides, I find that Alcon has demonstrated that genuine issues of material fact exist relating to these counterclaims.

The fundamental questions here are what information Dr. While at this point there appears to be no "smoking gun" showing conclusively that Dr. Kline Aff. Docket Item "Kline Aff. While there does not appear to be any direct evidence that Dr. Minno was present at that meeting, Dr.

Minno would typically be present at the quad review meetings. Affidavit of Russell W. Faegenburg Docket Item , Ex. There is also direct evidence that Dr. Minno did attend several similar meetings of Alcon's lens care research scientists, and that he made presentations at those meetings. See Faegenburg Aff. While certainly not conclusive, this is some circumstantial evidence tending to show that Dr. Minno may have been at the June 24, quad review meeting where Rosenthal gave her presentation, which at the very least suggests that issues of fact do exist about the extent of Dr.

Minno's knowledge of Alcon's research and development in this area. Quintana also testified that Dr. Minno was present at a January 29, meeting of the Optical Products staff.

His minutes from that meeting indicate that Rosenthal spoke at that meeting about her work with Polyquad. While this, too, does not conclusively demonstrate that Dr. Minno was exposed to any trade secrets in this regard, it does reinforce the notion that these matters cannot be resolved on a motion for summary judgment. There is also documentary evidence, in the form of notes and memoranda drafted by Dr. Minno and others at Alcon, indicating that Dr.

Minno had participated in discussions about possible new Alcon cleaning and disinfecting products. One of them, a notebook entry by Dr. Minno, refers to a liquid enzyme that "could Cahoy Docket Item Ex. Minno also wrote about an "Enzyme Muti [sic] Enzyme Product for cleaning and disinfecting" that, he wrote, "could also be formulated in liquid form. These arguments, however, go more to the weight of this evidence than to the question presently before me, which is whether Alcon has demonstrated the existence of genuine issues of material fact.

While this evidence may be largely, or even entirely, circumstantial, I find that it raises issues of fact. Choice Hotels Int'l, F. More to the point, however, the ideas discussed in Dr. Minno went into some detail in discussing the chemical aspects of such a system. Thus, even if the basic idea of marketing such a product could not constitute a trade secret, that does not mean that the fruits of Alcon's research aimed at developing the product could not be protectible as trade secrets.

There is some evidence that Alcon recognized that the combination of these products reduced the antimicrobial activity of OPTI-SOFT, but it is nevertheless clear that Alcon was conducting research in this area and working on ways to correct these problems. The extent of Dr. Minno's knowledge of that research remains in dispute.

Also at issue is whether and to what extent Dr. First, it should be kept in mind that what Dr. Moreover, given the risk of exposure to liability, it is highly unlikely that an employee who does divulge his past employer's trade secrets would be incautious enough to say so on paper or even orally.

Polyn, Esq. Arno, Esq. Toward the end of the letter, Polyn, responding to an earlier request made by Arno, summarized the development of the invention covered by the ' patent. Minno "suggested that this relationship should also be present in antimicrobial agents other than DYMED.

Additional testwork was then conducted on other known antimicrobial agents confirming George's belief. Although Polyn optimistically closed by saying that he was "look[ing] forward to working with [Arno] to bring this matter to a successful conclusion," sadly that was not to be the case, and at least according to Alcon, that very letter was part of the reason.

Alcon claims that Dr. Minno knew from his exposure to confidential Alcon information that increasing the ionic strength of Polyquad solutions adversely affected Polyquad's antimicrobial activity. Alcon also points to a memorandum dated March 7, , in which Dr. Minno advised one Ms. This would add another competitive system cleaning disinfection on the market besides Ultrazyme.

He then asked her to schedule biocidal efficacy testing of Opti-Soft and Opti-Zyme in combination, using Opti-Soft alone as a control. Minno was aware from his work at Alcon of the potential for a combined system using Opti-Soft and Opti-Zyme.

Minno was named as an inventor. Alcon also notes the existence of a May 31, memorandum by Dr. Minno entitled "Polyquad Technically Speaking Draft. Alcon's evidence relating to these counterclaims may be thin in some respects, but on a motion for summary judgment, the court is charged with the duty of "issue finding," not "issue resolution. Prudential Residential Servs. Minno had a fiduciary relationship with Alcon; pursuant to his employment agreement, Dr. Alcon first asserted this counterclaim in an amended answer filed on February 4, , pursuant to a February 1, order of Magistrate Judge Jonathan W.

Feldman granting Alcon's previously-filed motion to amend its answer. Unlike the claims for misappropriation of trade secrets and unfair competition, constructive trust claims are governed by a six-year statute of limitations. See Krauss v. Iliescu, N. The limitations period begins to run upon the occurrence of the wrongful act giving rise to a duty of restitution.

Petzing, A. Alcon admits that at least part of the reason that it wanted to add this counterclaim was its concerns over the possible timeliness problems with the first and second counterclaims. Transcript of Proceedings Before Hon. David G. Larimer, July 7, , at Alcon contends, however, that it has stated a valid constructive trust claim under New York law, and that this is not simply another version of its other counterclaims.

If in fact Alcon has set forth all the elements of a constructive trust claim, then the claim was timely brought. In addition, the fact that this claim is based upon the same facts as Alcon's claims for misappropriation of trade secrets and unfair competition does not mean that it is simply a tort claim in disguise; constructive trust claims can arise out of the same facts as tort claims.

Kilgore, No. Coluccio, 51 F. Life Ins. Soc'y v. Shakerdge, 49 N. Simonds, 45 N. Neos, N. Bank of Am. Ass'n, F. Viewing the evidence in the light most favorable to Alcon, the nonmoving party, I find that it has set forth enough facts at least to give rise to genuine issues of material fact with respect to this claim.

Keeping in mind that no one element is absolutely essential to a constructive trust claim, I nevertheless believe that plaintiff has presented some evidence to support each element. As for the first element, i. Rauschenberg, F.

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Bausch and lomb vs alcon labs Https:// Automation, Link. In FebruaryAlbs amended the application to add language in Claim 1 stating that the cleaning enzyme "does not substantially inhibit the disinfecting activity of the [antimicrobial agent] when the two components are combined. When the entire course of events in the PTO proceedings are viewed as a whole, most if not all of those bwusch inconsistencies and self-contradictions disappear. Minno during his employment were to be assigned to Alcon. See Al-Site Corp.
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Cookie Notice. Lee hopes the results of the study will result in improvements in the Tecnis. I hope this will ultimately help get the best outcomes for patients and be beneficial for the profession. Comparison of the rotational stability of two toric intraocular lenses in consecutive eyes. Ophthalmology Mar Axis misalignment of toric intraocular lens: Placement error and postoperative rotation.

Ophthalmology ; Omega-3s Questionable For Dry Eye In early May, researchers from the Dry Eye Assessment and Management Study Research Group published a study that showed no significant differences between omega-3 fatty acids and placebo in relieving dry-eye symptoms.

The primary outcome of the study was the mean change from baseline in the score on the Ocular Surface Disease Index, based on the mean scores obtained at six and 12 months. In addition, the rates of adverse events were similar. The researchers concluded that there were no significantly better outcomes between the groups.

If you really look at the study in detail, both the placebo and the omega group did show improvement, but there was no statistical difference between the two. So one could make the argument that in some patients, the omega supplement does help. According to the study and my experience, the omega supplement helps more with the symptoms of dry eye rather than the dry eye itself.

Davidson continues. In their opinion, they feel like it helps them—when they miss a few days, they feel worse. Are they getting the placebo effect? Despite the somewhat unexpected results, Dr. Davidson is excited about them. But at the same time, if you look closely at it, you could argue that people showed improvement even though there was no difference between placebo and omega-3s. The blood levels of the omega-3 group did go up, meaning it did get into the blood. However, in the placebo group there was no change in blood levels, which supports even more that there was no difference between the groups.

Davidson says the study may affect some practices.

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Bausch+Lomb - WHY LUXSMART?

Bausch & Lomb (" B & L") is the assignee of the United States Patent No. 5,, (referred . Apr 30,  · Detailed Description: This is a multicenter, controlled, randomized, monocular trial evaluating the safety and effectiveness of the Bausch & Lomb DVisc40 dispersive OVD compared to the Alcon VISCOAT® dispersive OVD when used in cataract surgery. Subjects will be randomized to one of the two treatment groups in a ratio (DViscVISCOAT®). AdGreat selection of all major brands with amazingly low prices. Order now and start saving. Save more on your favorite brands: low prices and 45% off your first order.