Free Letter - District Court of Delaware - Delaware

Case 1 :06-cv-00741-SLR Document 32 Filed O4/O3/2007 Page 1 of 3
BOUCHARD MARGULES 6. FRIEDLANDER
A PROFESSIONAL CORPORATION
SUITE I 4OO
22 2 DELAWARE AVENUE
WILMINGTON, DELAWARE I 980 I
(3021 573-3500
FAX (302) 573-3501
ANDRE G. BOUCHARD Jon-in M. SEAMAN
JOEL FRIEDLANDER D0M¤mc•< T. GA1·rus0
DAVID J. MARGULE5 JAMES G. MCMILLAN, un
SEAN M. BRENNEcKE
March 27,2007
[Public Version April 3, 2007]
PUBLIC VERSION — FILED
PURSUANT TO D. DEL. LR 26.2
BY CM/ECF
The Honorable Sue L. Robinson
Chief Judge
United States District Court for
The District of Delaware
U.S. Courthouse
844 N. King Street
Wilmington, DE 19801
RE: Celgene Corporation, et al. v. Abrika Pharmaceutical, Inc., et al.
D. Del. C.A. No. 06-741-SLR
Dear Chief Judge Robinson:
This firm, along with Axinn, Veltrop & Harkrider LLP, represents the Abrika
defendants in this case. In their March 27, 2007 "cover letter" transmitting the proposed
scheduling order, plaintiffs chose to re-argue their motion to strike or transfer by
misrepresenting various matters in an action before the U.S. District Court for the District
of New Jersey in which Abrika has moved to dismiss for lack of personal jurisdiction.l
Plaintif`fs’ maneuver here lays bare the real reason they seek to proceed in New
Jersey. This is a Hatch-Waxman case. With the filing of its complaint here, defendants
are under a statutorily-imposed stay which prevents them from commercializing their
1 The New Jersey motion to dismiss now longer has a retum date of April 2, 2007.
Per her clerk, Judge Wigenton is on vacation, the retum date will be some
multiple weeks in the future and the date for her ruling will be at some indefinite
future time.

Case 1 :06-cv-00741-SLR Document 32 Filed O4/O3/2007 Page 2 of 3
Chief Judge Robinson
April 3, 2007
Page 2
generic version of Ritalin LA until a court rules that plaintiffs’ patents are invalid,
unenforceable or not infringed or until 30 months after the filing of the complaint —
whichever occurs first. Plaintiffs’ average weekly revenues in 2006 from Ritalin LA
were more than [REDACTED] percent of Abrika’s yearly total gross revenues. Each
week plaintiffs can stall the resolution of this case, Abrika loses significant revenues and
consumers who suffer from ADHD disorder will not have a more affordable generic
substitute.
Local Rule 16.2(c) of this Court provides for prompt trial dates. Within the
context of that Rule, the parties negotiated a proposed schedule for this case where the
trial would begin on September 2, 2008, less than 21 months after the complaint was
filed. In New Jersey, by contrast, according to the most recent statistics of the
Administrative Office of the United States Courts the average time to trial in civil
lawsuits — much less complicated patent cases — is 30.7 months. Thus, it is likely trial in
New Jersey would be a year or more after a trial in Delaware. 2
In any event, the patent infringement alleged here is brought under 35 U.S.C.
§271(e)(2), not 35 U.S.C. §271(a), because infringement arises from filing the ANDA
with the FDA. Eli Lilly & C0. v. Medtronic, Inc., 496 U.S. 661, 678 (1990). The facts
and witnesses surrounding the ANDA are centered not in New Jersey — but in Florida. In
this circumstance, filing in plaintiffs’ "home state" does nothing to help efficiently
resolve this dispute as required by the Hatch-Waxman Act and the public interest.
Instead, plaintiffs’ suit in New Jersey has simply been an urmecessary burden to
defendants and the judiciary that could have been avoided entirely had plaintiffs chosen
to file in Delaware only.
Defendants have, consistent with the Hatch-Waxman Act, moved forward to bring
this case to its earliest possible resolution. They filed their answer in this case and
engaged in expedited jurisdictional discovery in New Jersey. Defendants took the lead in
negotiating the scheduling order here by producing the first discussion draft. Consistent
with this Court’s March 9, 2007 order, defendants today are serving their initial
disclosures to plaintiffs despite their refusal to comply with that order by doing the same.
Also, now that the Rule 26(f) conference has been concluded, defendants also today are
serving interrogatories and document production requests on plaintiffs. Discovery in this
case should proceed apace irrespective of the New Jersey court’s ultimate decision so the
resolution of the parties’ dispute will not be indefinitely delayed because of plaintiffs’
tactical filing choice.
2 To advance their plan to implement this extended delay, plaintiffs misstate
various New Jersey factual matters that have no place before this Court.
2

Case 1:06-cv-00741-SLR Document 32 Filed O4/O3/2007 Page 3 of 3
Chief Judge Robinson
April 3, 2007
Page 3
Respectfully,
/s/ John M. Seaman
John M. Seaman (#3868)
j seaman@bmf—law.com
cc: Philip A. Rovner, Esquire (by email)
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