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Law360 (June 17, 2020, 9:34 PM EDT ) Drugmakers Ferring Pharmaceuticals Inc. and Serenity Pharmaceuticals LLC told a New York federal court on Tuesday that, due to the pandemic, they won't be appearing in person for a bench trial set for July over patents linked to anti-diuretic medicines, though Ferring wants the court to leave open the possibility of in-person closing arguments.
The two wrote to the court to report terms they've agreed on for the trial, set to start July 6, which concerns Switzerland-based Ferring's claims against Serenity and its patent-holding company Reprise Biopharmaceutics LLC. Ferring wants to invalidate patents for the anti-diuretic desmopressin, while Serenity lobbed counterclaims that Ferring is infringing with its drug Nocdurna, which treats frequent nighttime urination.
Serenity and Reprise "have confirmed that they do not believe it is safe to travel to New York City at this time. Thus, given your honor's statement that you 'will not have just one side's lawyers in the courtroom,' the entire trial will be handled remotely and no party will appear in person," they said.
That agreement does not extend to closing arguments, where Ferring is still pushing for in-person proceedings in U.S. District Judge Colleen McMahon's Manhattan courtroom.
But Serenity said that decision should wait until "near the end of trial when everyone will have more current information regarding the state of the pandemic and its impact on travel safety."
On May 20, Judge McMahon said she wouldn't require witnesses to testify in person, noting that many witnesses in the case are older people and are skittish about traveling, and she rejected Ferring's arguments that witnesses who are able to appear in person should be forced to do so.
Many of the terms announced in Tuesday's letter accord with what Judge McMahon told them in late May she would be inclined to approve.
Witnesses, including many overseas, will be sent sealed physical binders for cross-examination and will be allowed to unseal the binders only when their cross-examination starts.
TrialGraphix will be handling the trial through a Zoom-based application called TRIALanywhere, and will send a tech support person with a special laptop to Judge McMahon by June 22. That person will be in attendance in the courtroom throughout the trial.
The trial has been delayed repeatedly by the COVID-19 pandemic.
Serenity and Reprise said in late May that forcing witnesses to appear in person would be "unfair and dangerous." Many of their witnesses are over 60 years old.
But Ferring's witnesses in Europe had agreed to travel to New York, its lawyers told the court in May.
Representatives for the parties were not immediately available for comment Wednesday.
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 Mike LaSusa and Dorothy Atkins. Editing by Adam LoBelia.
For a reprint of this article, please contact reprints@law360.com.
