Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-00884-SLR Document 88 Filed 03/16/2007 Page 1 of 2
YOUNG CONAWAY STARGATT & TAYLOR, LLP
THE BRANDYWINE BUILDING
1000 VVEST STREET, 1711-1 FLOOR
JOSY \V, INGERSOLL (No. 1088) \\f]LM[NG*[(_)N, DELAWARE {QSO] (302) 571-6600
DIRECT DTAL: 302-571-6672 (302) 571-1253 Em
DIRECT EAX: 302—576»3301 p,g_ BOX 39; (800) 253-2234 (DE ONLY)
ji¤2€FS0l1@>’¢S¥-<><>m YVILMINGTON, DELAWARE 19899-0391 MW'-y0¤¤s¤0¤¤W¤y-¢¤¤1
March 16, 2007
BY E—FILING
The Honorable Sue L. Robinson
United States District Court
844 King Street
Wilmington, DE 19801
Re: Ferrirzg B. V v. Teva Plzezrnzczcemicczls USA, Inc., etal.
Civil Action No. 04-884-SLR
Dear Chief Judge Robinson:
We write in response to Ferring’s letter of today regarding oral argument in the
F errirzg v. Barr case. In its letter, counsel for Ferring indicates that Judge Brieant denied Barr’s
motion for attorneys’ fees from the bench. Until such time as F erring is able to provide the
transcript from that oral argument, it will be difficult for the Court and Teva to know the exact
basis of Judge Brieant’s denial.
Under any circumstances, however, it is important to note that Teva’s case for
attomeys’ fees differs in key respects from Barr’s. These differences warrant granting Teva’s
motion for fees. When Ferring filed its litigation against Teva, all of the facts supporting the
summary judgment of inequitable conduct against Ferring had been laid out in the Barr
litigation. Fening did not have that factual backdrop when it sued Barr. Furthermore, in the
present litigation, Ferring refused to dismiss its case even after the Federal Circuit affirmed
summary judgment against it in the Barr litigation, even despite an earlier promise. These facts,
not present in the Barr case, bear on Ferring’s manifest unreasonability, both in instigating this
case and in maintaining it despite knowing of the unenforceability of its patent. Manifest
unreasonability is the touchstone of a bad faith finding, Ellzfech Sys. Corp. v. PPG Indus., Inc.,
903 F.2d 805, 811 (Fed. Cir. 1990). Bad faith in turn supports entry of attorneys’ fees.
Bmsseler USA, LLP v. Stryker Sales Corp., 267 F.3d 1370, 1380 (Fed. Cir. 2001).
These facts and arguments, presented by Teva in its Opening Brief in Support of I i`i`
its Motion to Dismiss Complaint and For An Award of Attomeys’ Fees and Costs, pp. 4-5 & 9-
10 (D.I. # 62) and supporting Reply, p. 6 (D.I. # 72), uniquely support an attomeys’ fees award
here, no matter what the outcome in Barr.
Respectfully submitted,
Josy W. Ingersoll (No. 1088)
oB01;222sss2.1 05s9s6.i012

Case 1:04-cv-00884-SLR Document 88 Filed O3/16/2007 Page 2 of 2
YouNc CoNAv»/AY STARGATT & TAYLOR, LLP
The Honorable Sue L. Robinson
March 16, 2007
Page 2
JWI:cg
cc: Clerk ofthe Court (by e—iiling and hand delivery)
Francis DiGiovanni, Esquire (by e-filing and e-mail)
Dennis J. Mondolino, Esquire (by e-mail)
Christine A. Pepe, Esquire (by e·mail)
William F. Long, Esquire (by e—mai1)
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