ANDA filing held not to support claim of willful infringement
Boehringer Ingelheim Int’l GMBH et al, v. Barr Laboratories, Inc. et al., No. 05-700-KAJ, July 6, 2006.
Jordan, J. Defendants’ motion for reconsideration of prior ruling denying motion to strike willfulness allegations is granted and exceptional case discovery is stayed.
This is an ANDA case where in January of 2006, the court denied a prior motion to dismiss a count of willful infringement as “premature, because I don’t know what besides the filing of an ANDA might be in the mix here.” The court converted the motion for reconsideration to a renewed motion to strike and granted the motion, concluding no other basis exists for the assertion of willfulness besides the filing of the ANDAs. “Exceptional case” can be based on meritless filings combined with litigation misconduct, but willful infringement cannot. The court issued an oral ruling to the same effect in In re ‘318 Patent Infringement Lit., C.A. No. 05-356-KAJ (D. Del. Mar. 3, 2006) (hearing transcript at 4-7).
Jordan, J. Defendants’ motion for reconsideration of prior ruling denying motion to strike willfulness allegations is granted and exceptional case discovery is stayed.
This is an ANDA case where in January of 2006, the court denied a prior motion to dismiss a count of willful infringement as “premature, because I don’t know what besides the filing of an ANDA might be in the mix here.” The court converted the motion for reconsideration to a renewed motion to strike and granted the motion, concluding no other basis exists for the assertion of willfulness besides the filing of the ANDAs. “Exceptional case” can be based on meritless filings combined with litigation misconduct, but willful infringement cannot. The court issued an oral ruling to the same effect in In re ‘318 Patent Infringement Lit., C.A. No. 05-356-KAJ (D. Del. Mar. 3, 2006) (hearing transcript at 4-7).
