Antitrust Law Daily Wrap Up, ANTITRUST—DDel: Antitrust Counterclaims to Drug Patent Infringement Suit Stayed, (Feb 8, 2013)

By E. Darius Sturmer, J.D.

An antitrust litigation arising out of a series of patent lawsuits between the marketers of a branded pinkeye medication and a company aiming to bring a generic version to the market was stayed by the federal district court in Wilmington, pending resolution of the related proceedings (Apotex, Inc. v. Senju Pharmaceutical Co., February 7, 2013, Robinson, S.).

According to the would-be generic competitor, Apotex, Inc., its filing of Abbreviated New Drug Applications for generic solutions of the drug led the marketers of branded Zymar and Zymaxid—Senju Pharmaceutical Co., Ltd., Kyorin Pharmaceutical Co., Ltd., and Allergan, Inc.—to initiate several sham patent infringement actions and engage in other anticompetitive conduct to delay generic competition. These actions, Apotex alleged, amounted to violations of the Sherman Act.

The court found a stay of the antitrust aspect of one of the patent cases appropriate because it could potentially simplify the issues in various ways. For example, the court noted, if the patent holders prevailed on their infringement claims, they would have a legal entitlement to exclude a competitor from the marketplace. Moreover, the outcome of the patent litigation could shed light on allegations of sham litigation. Finally, the procedural posture of the case favored a stay, as there had been no discovery, scheduling of conferences, or filing of an answer yet.

The court denied Senju’s motion for a stay related to another patent infringement suit it had brought against Apotex. The potential for this case to simplify the antitrust litigation was likely limited to any overlap of the inequitable conduct defense in the action with the antitrust allegations based on reexamination fraud, in the court’s view.

In consideration of the stay, the court declined to rule on several other motions before it, including Senju Pharma and Kyorin's motion to dismiss for failure to state a claim and Allergan's motion to dismiss based upon failure to allege antitrust injury.

The case is Civ. No. 12-196-SLR.

Attorneys: Francis J. Murphy (Murphy & Landon) for Apotex, Inc. Richard D. Kirk (Bayard, P.A.) for Senju Pharmaceutical Co., Ltd. David E. Ross (Seitz Ross Aronstam & Moritz LLP) for Kyorin Pharmaceutical Co., Ltd. Jack B. Blumenfeld (Morris, Nichols, Arsht & Tunnell LLP) for Allergan, Inc.

Companies: Apotex, Inc.; Apotex Corp.; Senju Pharmaceutical Co., Ltd.; Kyorin Pharmaceutical Co. Ltd.; Allergan, Inc.

Cases: Antitrust DelawareNews