Delaware Patent Litigation Report : Delaware Intellectual Property Lawyer & Attorney : Morris James Law Firm : Delaware Patent Litigation Report

This case involves two consolidated class actions regarding antitrust claims with respect to the drug metoprolol succinate (Toprol-XL) used for the treatment of hypertension, angina, and congestive heart failure.  The Federal Circuit affirmed a determination that the patent is invalid for double patenting and remanding the finding of inequitable conduct.  Plaintiffs accuse defendant of fraudulently obtaining patents through inequitable conduct, invalid Orange Book listings, and sham litigation.  The absence of tentative approval does not resolve the issue of whether the defendant engaged in anti-competitive conduct.  The court also cannot determine at this stage whether an ANDA-filer diverted resources causing delay in obtaining FDA approval.  The motion is denied for the additional reason that failure to disclose information regarding inventorship and ownership to the PTO could constitute inequitable conduct.  The sham litigation claim could succeed if plaintiffs establish the infringement lawsuit was objectively baseless and therefore declines to dismiss that count.