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Law360 (June 25, 2020, 10:02 PM EDT ) A top New York federal judge said Thursday that drugmakers Ferring and Serenity are ready to start a full-scale online patent trial in early July, saying that while the pioneering case will be "a little weird," it'll set an important example from a court that leads the nation in commercial litigation.
In the final pretrial conference for the dispute between the two drugmakers over patents linked to anti-diuretic medicines, U.S. District Judge Colleen McMahon told Ferring Pharmaceuticals Inc. and Serenity Pharmaceuticals LLC that she's getting comfortable with the secure Zoom-based platform the parties have provided the court, and they discussed scheduling for witnesses who will appear live from Europe.
"It's a little weird, but I'm looking forward to this. I'm looking forward to moving a case. And I think it's important in our district that we show we're capable of starting to move cases," Judge McMahon said. "This is the commercial litigation center of the known universe."
The judge also suggested doing away with opening arguments altogether, saying she's finished reading the affidavits of the main fact witnesses and wants to start hearing evidence. Ferring lead attorney Mary Bourke assented to the suggestion, and there was no objection from Serenity lead attorney Paul Skiermont.
"I'm totally immersed in the evidence now. That's the advantage of doing a trial this way: Opening statements are really superfluous," the judge said. "I want to hear from the witnesses; I've heard from you guys."
The case 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 has lobbed counterclaims that Ferring is infringing with its drug Nocdurna, which treats frequent nighttime urination.
The parties on Thursday saw all their exhibits admitted in one fell swoop — "Boom. Magic wand," the judge said.
They also agreed not to make a call yet about closing arguments, which Ferring still wants to do in person in Judge McMahon's Manhattan courtroom — now outfitted with Plexiglass.
Serenity has pushed for remote closings, previously saying it didn't "believe it is safe to travel to New York City at this time."
Where Serenity had considered New York a threat, the shoe may now be on the other foot. The virus recently has surged in other areas, including Texas, where Serenity's lead lawyer is based. New York Gov. Andrew Cuomo ordered Wednesday that visitors from certain states isolate themselves after arrival.
"Now Texans can't come to New York without being quarantined for two weeks," Skiermont told the judge.
"You didn't get out of Texas fast enough, Mr. Skiermont," Judge McMahon quipped. "So we'll talk about that in a couple of weeks."
The two sides and the judge began developing the plan for the online trial in May after the coronavirus pandemic delayed it.
Witnesses, including many overseas, will be sent sealed physical binders for their cross-examinations.
TrialGraphix will be handling the trial through a Zoom-based application called TRIALanywhere, and has sent a special laptop to Judge McMahon. It's also provided a tech support person who was by her side Thursday and will be in the courtroom throughout the trial.
Members of the public will be able to "attend" the Zoom trial by dialing in.
Judge McMahon had some final words of praise for the lawyers, who have hammered out workarounds and gotten creative to make the online trial happen.
"For you guys to be willing to do this, it's a tremendous service to the court," she said, "in addition to your clients, who need to have this over before they're all dead."
The patents-in-suit are U.S. Patent Nos. 7,405,203; and 7,579,321.
Ferring is represented by Mary Bourke and Dana Severance of Womble Bond Dickinson.
Serenity is represented by Paul Skiermont 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.
