Motion to strike willfulness claim is granted; exceptional case claim is preserved

Posted on October 8, 2008 by Morris James LLP

Sepracor Inc. v. Dey, L.P. and Dey, Inc., et al., C.A. No. 06-113-JJF, September 26, 2008.

Farnan, J.  Court grants defendants’ motion to strike plaintiff’s willfulness allegations but preserves plaintiff’s exceptional case claim.

Plaintiff files an infringement action following defendants’ ANDA filing seeking approval to market levalbuterol hydrochloride solutions.  Defendants file a Paragraph IV certification alleging that the patents-in-suit are either invalid or not infringed by defendants’ levalbuterol hydrochloride solutions.  Citing to Glaxo Group Ltd. v. Apotex, Inc., the Court recognizes the Federal Circuit’s clear ruling that the filing of an ANDA application cannot support a claim for willful infringement.  Because plaintiff offers no basis for its willfulness claims other than defendants’ ANDA filing, the Court strikes plaintiff’s allegations of willfulness.  However, consistent with Glaxo, the Court permits plaintiff to continue pursuing an exceptional case claim since numerous factual circumstances may support such a claim.
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