Free Answer to Counterclaim - District Court of Delaware - Delaware

Case 1:06-cv-00033-SLR

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Filed 07/24/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE TAKEDA PHARMACEUTICAL COMPANY, LTD., and TAP PHARMACEUTICAL PRODUCTS INC., Plaintiffs and Counterclaim-Defendants, v. TEVA PHARMACEUTICALS USA, INC., and TEVA PHARMACEUTICAL INDUSTRIES LTD., Defendants and Counterclaim-Plaintiffs. ) ) ) ) ) ) ) ) ) ) ) )

C.A. No. 06-033 (SLR)

TAKEDA PHARMACEUTICAL COMPANY, LTD.'S AND TAP PHARMACEUTICAL PRODUCTS INC.'S REPLY TO TEVA PHARMACEUTICALS USA, INC.'S AND TEVA PHARMACEUTICAL INDUSTRIES LTD.'S AMENDED COUNTERCLAIMS TO AMENDED COMPLAINT Plaintiffs-Counterclaim Defendants Takeda Pharmaceutical Company, Ltd. ("Takeda") and TAP Pharmaceutical Products Inc. ("TAP"), by their undersigned attorneys, herein reply to the Amended Counterclaims ("Amended Counterclaims") of DefendantsCounterclaimants Teva Pharmaceuticals USA, Inc. and Teva Pharmaceutical Industries Ltd. (collectively "Teva") to the Amended Complaint as follows: 1. Admit that Plaintiffs have filed an Amended Complaint and hereby

repeat and reallege each and every allegation contained in the Amended Complaint, admit that a justiciable controversy exists between the parties hereto with respect to infringement and validity of certain claims of U.S. Patent Nos. 4,628,098, 5,026,560, 5,045,321, 5,093,132, and 5,433,959, and deny the remaining allegations set forth in paragraph 1 of Teva's Amended Counterclaims. 2. Admit that Teva's Amended Counterclaims purport to arise pursuant to

Title 35 U.S.C. and 28 U.S.C. §§ 2201 and 2202, and deny the remaining allegations set forth in paragraph 2 of Teva's Amended Counterclaims.

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3. 4.

Admit that the Court has personal jurisdiction over Plaintiffs. Admit that Teva purports to invoke the jurisdiction of the Court pursuant

to 28 U.S.C. §§ 1331, 1338, and deny the remaining allegations set forth in paragraph 4 of Teva's Amended Counterclaims. 5. Admit that venue is proper in this Court. COUNT ONE (Non-Infringement of the `098 Patent) 6. Plaintiffs repeat and re-allege their responses to paragraphs 1-5 of Teva's

Amended Counterclaims as if fully set forth herein. 7. Deny each and every allegation contained in paragraph 7 of Teva's

Amended Counterclaims of Teva's Amended Counterclaims. COUNT TWO (Non-Infringement of the `560 Patent) 8. Plaintiffs repeat and re-allege their responses to paragraphs 1-7 of Teva's

Amended Counterclaims as if fully set forth herein. 9. Deny each and every allegation contained in paragraph 9 of Teva's

Amended Counterclaims. COUNT THREE (Non-Infringement of the `321 Patent) 10. Plaintiffs repeat and re-allege their responses to paragraphs 1-9 of Teva's

Amended Counterclaims as if fully set forth herein. 11. Deny each and every allegation contained in paragraph 11 of Teva's

Amended Counterclaims.

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COUNT FOUR (Non-Infringement of the `132 Patent) 12. Plaintiffs repeat and re-allege their responses to paragraphs 1-11 of Teva's

Amended Counterclaims as if fully set forth herein. 13. Deny each and every allegation contained in paragraph 13 of Teva's

Amended Counterclaims. COUNT FIVE (Non-Infringement of the `959 Patent) 14. Plaintiffs repeat and re-allege their responses to paragraphs 1-13 of Teva's

Amended Counterclaims as if fully set forth herein. 15. Deny each and every allegation contained in paragraph 15 of Teva's

Amended Counterclaims. COUNT SIX (Declaration of Invalidity of the `098 Patent) 16. Plaintiffs repeat and re-allege their responses to paragraphs 1-15 of Teva's

Amended Counterclaims as if fully set forth herein. 17. Deny each and every allegation contained in paragraph 17 of Teva's

Amended Counterclaims. COUNT SEVEN (Declaration of Invalidity of the `560 Patent) 18. Plaintiffs repeat and re-allege their responses to paragraphs 1-17 of Teva's

Amended Counterclaims as if fully set forth herein. 19. Deny each and every allegation contained in paragraph 19 of Teva's

Amended Counterclaims.

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COUNT EIGHT (Declaration of Invalidity of the `321 Patent) 20. Plaintiffs repeat and re-allege their responses to paragraphs 1-19 of Teva's

Amended Counterclaims as if fully set forth herein. 21. Deny each and every allegation contained in paragraph 21 of Teva's

Amended Counterclaims. COUNT NINE (Declaration of Invalidity of the `132 Patent) 22. Plaintiffs repeat and re-allege their responses to paragraphs 1-21 of Teva's

Amended Counterclaims as if fully set forth herein. 23. Deny each and every allegation contained in paragraph 23 of Teva's

Amended Counterclaims. COUNT TEN (Declaration of Invalidity of the `959 Patent) 24. Plaintiffs repeat and re-allege their responses to paragraphs 1-23 of Teva's

Amended Counterclaims as if fully set forth herein. 25. Deny each and every allegation contained in paragraph 25 of Teva's

Amended Counterclaims. COUNT ELEVEN (Declaration of Award of Attorneys' Fees, Costs, and Expenses) 26. Plaintiffs repeat and re-allege their responses to paragraphs 1-25 of Teva's

Amended Counterclaims as if fully set forth herein. 27. Deny each and every allegation contained in paragraph 27 of Teva's

Amended Counterclaims.

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COUNT TWELVE (Declaration of Unenforceability of the `098 Patent Due to Inequitable Conduct) 28. Plaintiffs repeat and re-allege their responses to paragraphs 1-27 of Teva's

Amended Counterclaims as if fully set forth herein. 29. Admit that the `098 patent states that certain "known compounds['] . . .

gastric mucous membrane protecting action is insufficient thus being hardly considered satisfactory as anti-ulcer agents," and deny the remaining allegations contained in paragraph 29 of Teva's Amended Counterclaims. 30. State that Column 6, lines 5-36 of the `098 patent speak for themselves,

and deny the remaining allegations contained in paragraph 30 of Teva's Amended Counterclaims. 31. Deny each and every allegation contained in paragraph 31 of Teva's

Amended Counterclaims. 32. Deny each and every allegation contained in paragraph 32 of Teva's

Amended Counterclaims. 33. Deny each and every allegation contained in paragraph 33 of Teva's

Amended Counterclaims. 34. Deny each and every allegation contained in paragraph 34 of Teva's

Amended Counterclaims. 35. Deny each and every allegation contained in paragraph 35 of Teva's

Amended Counterclaims. 36. Plaintiffs deny each and every other allegation in Teva's Amended

Counterclaims not heretofore expressly admitted herein.

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PRAYER FOR RELIEF WHEREFORE, Plaintiffs seek the following relief: A. An order dismissing Teva's Amended Counterclaims with prejudice and denying each and every Prayer for Relief sought by Teva; B. An order granting each and every Prayer for Relief sought by Plaintiffs in the Amended Complaint; C. A declaration that this is an exceptional case, and an award of attorneys' fees from Teva in this action pursuant to 35 U.S.C. § 285; D. An award of costs and expenses of Plaintiffs in defending these Amended Counterclaims; E. Such further and other relief as this Court determines to be just and proper. MORRIS, NICHOLS, ARSHT & TUNNELL LLP

/s/ Rodger D. Smith II (#3778)
__________________________________ Jack B. Blumenfeld (#1014) Mary B. Graham (#2256) Rodger D. Smith II (#3778) James W. Parrett, Jr. (#4292) 1201 N. Market Street P.O. Box 1347 Wilmington, DE 19801 (302) 658-9200 Attorneys for Plaintiffs Takeda Pharmaceutical Company Ltd., and TAPPharmaceutical Products Inc.

OF COUNSEL: Eric J. Lobenfeld Tedd W. Van Buskirk Arlene L. Chow Dillon Kim HOGAN & HARTSON LLP 875 Third Avenue New York, New York 10022 (212) 918-3000

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Philippe Y. Riesen HOGAN & HARTSON LLP Shinjuku Center Building, 46th Floor 25-1 Nishi-Shinjuku 1-chome Shinjuku, Tokyo 163-0646 Japan (81) 3-5908-4070 Richard de Bodo HOGAN & HARTSON LLP 1999 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 (310) 785-4600 Attorneys for Plaintiff Takeda Pharmaceutical Company Limited

William F. Cavanaugh Stuart E. Pollack Chad J. Peterman PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036 (212) 336-2000 Attorneys for Plaintiff TAP Pharmaceutical Products Inc. July 24, 2007
981014

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CERTIFICATE OF SERVICE I hereby certify that on July 24, 2007, I caused the foregoing to be electronically filed with the Clerk of the Court using CM/ECF, which will send electronic notification of such filing to the following: Karen L. Pascale, Esquire Karen E. Keller, Esquire YOUNG CONAWAY STARGATT & TAYLOR, LLP Additionally, I hereby certify that true and correct copies of the foregoing were caused to be served on July 24, 2007, upon the following individuals in the manner indicated: BY E-MAIL AND HAND DELIVERY Karen L. Pascale, Esquire YOUNG CONAWAY STARGATT & TAYLOR, LLP The Brandywine Building 1000 West Street, 17th Floor Wilmington, DE 19801 [email protected] BY E-MAIL John L. North, Esquire SUTHERLAND ASBILL & BRENNAN LLP [email protected] Jeffrey J. Toney, Esquire SUTHERLAND ASBILL & BRENNAN LLP [email protected] Laura Fahey Fritts, Esquire SUTHERLAND ASBILL & BRENNAN LLP [email protected] Jeffrey D. Blake SUTHERLAND ASBILL & BRENNAN LLP [email protected]

/s/ Rodger D. Smith II (#3778)
______________________________________ Rodger D. Smith II (#3778)