Mixed ruling issues in antitrust case regarding sham litigation claims
Teva Pharmaceuticals USA, Inc. et al., v. Abbott Laboratories et al. No. 02-1512-SLR; Impax Laboratories, Inc. v. Abbott Laboratories, et al., No. 03-120-SLR; In re Tricor Direct Purchaser Antitrust Litigation No. 05-340-SLR; In Re: Tricor Indirect Purchaser Antitrust Litigation No. 05-360-SLR, September 24, 2008, revised October 2, 2008.
Robinson, J. Defendants’ motion for summary judgment on plaintiffs’ claims of sham litigation premised on inequitable conduct and plaintiffs’ Walker Process claims is granted. Defendants’ motion for summary judgment on sham litigation claims based on a lack of probable cause for asserting patent infringement is denied.
This is a consolidated antitrust action brought by various plaintiffs asserting that defendants impeded the market entry of the generic version of TRICOR®, a brand name drug used to treat high levels of cholesterol and tryglycerides. Specifically, plaintiffs assert that defendants instituted a multi-faceted scheme, manipulating the Hatch Waxman Act statutory framework, consisting of sham litigation, product conversions, and other intentional wrongful acts designed to further a monopoly. The Court granted summary judgment in favor of defendants with respect to the sham litigation claims based on inequitable conduct and the Walker Process claim, which accuses defendants of asserting a patent with knowledge that it is unenforceable due to inequitable conduct. It denied defendants’ motion with respect to sham litigation claims based on lack of probable cause for asserting patent infringement, noting that not one court reviewing defendants’ proposed construction found it tenable. Thus a jury could find defendants’ infringement allegations objectively baseless, such as to render the capsule litigation a sham.
