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Law360, New York (April 27, 2020, 7:04 PM EDT ) Lawyers for Ferring Pharmaceuticals Inc. and Serenity Pharmaceuticals LLC told the Southern District of New York's chief judge Friday they are worried about her plan to hold a late-May bench trial in their drug patent fight, saying coronavirus curbs render "uncertain" the potential to go forward.
In a joint letter, Ferring counsel from Gibbons PC and Womble Bond Dickinson (US) LLP and lawyers for Serenity from Skiermont Derby LLP asked U.S. District Judge Colleen McMahon to reconsider her recent directive that "we are going to proceed" with a bench trial starting May 26.
"The parties are prepared and wish to move forward with trial in this matter as soon as it is feasibly possible, but current travel and business restrictions make the logistics of doing so on May 26 uncertain," they said.
Unless the sides settle, the dispute is headed for trial after the Switzerland-based Ferring sued Serenity in 2017 seeking to invalidate three patents related to its anti-diuretic desmopressin patent. Serenity hit Ferring with counterclaims, accusing Ferring of infringing its patents for the drug Nocdurna, which treats frequent nighttime urination.
It was unclear how the request for more time would play with the often outspoken Judge McMahon, who is known for taking to task both lawyers and defendants. Her recent guidance to the Ferring litigants said plainly, "Let me know how you wish to proceed. Just understand that we are going to proceed."
According to recent Ferring filings, at least four of the company's planned trial witnesses reside in Europe.
"Even putting aside travel restrictions for the non-U.S. witnesses, many of the jurisdictions in which counsel and witnesses reside remain under stay-at-home orders and/or directives through at least May 15, which are likely to be extended further," the lawyers' letter said.
Another witness, who hails from Chicago, is known to be under a stay-at-home order through May 30, the letter said. New York's travel and business curbs are in effect until at least May 15.
Ferring attorney William Deni, who penned Friday's letter on behalf of both sides, did not respond to a request for comment Monday.
The patents-in-suit are U.S. Patent Nos. 7,405,203 and 7,579,321.
Ferring is represented by Mary Bourke, Kristen Cramer, Dana Severance, Daniel Attaway, Nicholas Verna and John Cox of Womble Bond Dickinson and William Deni of Gibbons PC.
Serenity is represented by Paul Skiermont, Sarah Spires, Jaime Olin and Sheetal Patel of Skiermont Derby LLP.
The case is Ferring Pharmaceuticals Inc. et al. v. Serenity Pharmaceuticals LLC et al., case number 1:17-cv-09922, in the U.S. District Court for the Southern District of New York.
--Additional reporting by Dorothy Atkins. Editing by Janice Carter Brown.
For a reprint of this article, please contact reprints@law360.com.
