Appendix 26

• Author: Kenneth Dorsney
• Pages: 717-727

717

RES PO NS IV E EX PE RT DEC LA RA TI ON IN SUP PO RT OF CLA IM CON ST RU CT IO N

IN THE UNITED STATES DISTRICT COURT

[Name of District]

[DISTRICT COURT CAPTION]

RESPONSIVE DECLARATION OF [NAME OF DECLARANT]

IN SUPPORT OF PLAINTIFFS’ PROPOSED CLAIM CONSTRUCTIONS

I, [Name], declare as follows:

1. I am the same [Name] who submitted a declaration in support of Plaintiffs'

Proposed Claim Construction on [Date] ("my prior declaration" or "[Name] Decl."). I am

submitting this declaration in response to the three declarations submitted on [Date] by

(1) [Name] on behalf of Defendant 3. ("[Name] Decl."); (2) [Name] on behalf of

Defendant and Defendant 4 ("[Name] Decl."); and (3) [Name] on behalf of Defendant 2

("[Name] Decl.").

2. My professional and educational background and other background

information are described in my prior declaration.

3. In addition to the materials identified in my prior declaration, I have

reviewed the [Name], [Name] and [Name] Declarations and the exhibits attached thereto.

I reserve the right to supplement this declaration and comment on any additional

declarations, reports or written or oral opinions submitted by the defendants or [Name],

[Name] and/or [Name].

The Art Relevant to the ‘001 Patent

4. It is my opinion that the art relevant to the subject matter of the ‘001

patent is the art of sustained release pharmaceutical formulations. (See [Cite]. For

example, the specification of the ‘001 patent states as follows:

[Insert]

5. [Name] and [Name] essentially agree with my opinion on the art relevant

to the ‘001 patent. [Name] states that the art relevant to the ‘001 patent is "pharmaceutical

formulations" and that the patent describes the use of gelling agents to provide sustained

release of the [active ingredient] active ingredient. [Cite]. [Name] states that the ‘001

patent "teaches and claims a sustained-release formulation." [Cite].

6. In contrast, [Name] states that, based on the specification of the ‘001

patent "considered in light of the knowledge of a person of ordinary skill in the art," the

art relevant to the ‘001 patent is "formulation of sustained release solid oral dosage

forms" [Cite], "sustained release formulations of solid oral dosage forms" [Cite], or

"sustained release solid oral dosage forms, particularly tablets and capsules" [Cite]. To

support his opinion, [Name] relies on seven statements from the ‘001 patent specification,

[Cite], but ignores the fact that the inventors characterized their invention as a "sustained

release formulation." (See ¶ 4 above). In my opinion, none of the seven statements cited

by [Name] supports his narrow view of the relevant art.

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