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Case 1:04-cv-00884-SLR Document 82 Filed 11/06/2006 Page 1 of 2
I CON NOLLY BOVE LODGE 8c HUTZ LLP
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November 6, 2006
VIA ECF — ELECTRONIC FILING
Chief Judge Sue L. Robinson
United States District Court
District of Delaware
844 North King Street
Wilmington, DE 19801
Re: Ferring B. V v. Teva Pharmaceuticals USA, Inc., et al.,
Civil Action No. 04-8 84-SLR
Dear Chief Judge Robinson:
l
Pursuant to LR 7.1.2(c), Ferring calls to the Court’s attention the attached opinion that is
highly relevant to Teva’s pending motion for attomeys’ fees and Ferring’s opposition thereto.
On November 2, 2006, Judge Brieant dismissed with prejudice all federal antitrust claims
asserted against Ferring B.V. ("Ferring") in the class action lawsuit In re DDA VP Direct
Purchaser Antitrust Litigation, In re DDA VP Indirect Purchaser Antitrust Litigation, 05 Civ.
2237 (CLB). We attach the decision for your review. See Exhibit A, Memorandum and Order.
As described below, this decision further supports a denial of Teva’s attorneys’ fee motion.
Significantly, in dismissing the Walker Process antitrust claims, which were based on the
F erring v. Barr decision, Judge Brieant stated:
The Court’s findings in the prior litigation of inequitable conduct and
unenforceability do not arise [sic] to the Walker Process requirements of fraud
and invalidity. At the very least, an additional component of scienter must be
shown to render actions fraudulent that might otherwise be found merely
inequitable. This Court did not determine that fraud was perpetrated on the PTO,
nor that but for the omissions found, the patent would not have issued. Nor could
it have done so on the complete record presented in F erring L
Ex. A at p. 8 (emphasis added). Therefore, by Judge Brieant’s own admission, the level of
"culpabi1ity” was minimal and cannot support an award of attorneys’ fees. See e.g., Gardco
Mfg., Inc. v. Herst Lighting Co., 820 F.2d 1209, 1215 (Fed. Cir. 1987) (denying attorneys’ fees

Case 1:04-cv-00884-SLR Document 82 Filed 11/06/2006 Page 2 of 2
CONNOLLY Box/E Loose & Hurz LLP
ATTORNEYS AT LAW
The Honorable Sue L. Robinson
November 6, 2006
Page 2 of 2
due to low level of culpability); National Diamond Syndicate, Inc. v. Flanders Diamond USA,
Inc., No. 00 C 6402, 2003 U.S. Dist. LEXIS 12083, *19-21 (N.D. lll. July 14, 2003) (the
requirements for proving a case exceptional are "more stringent" than those required to prove
inequitable conduct). Also notable is Judge Brieant’s finding that the omission did not bear on
patentability.
Furthermore, in dismissing the so—called "sham” litigation claims against Ferring, Judge
Brieant stated:
The bringing of the suit by Ferring and Aventis was not in subjective bad faith,
but rather a standard response to Hatch-Waxman. Every losing litigant in the
federal courts does not become a sham litigant merely by losing their case.
Id at p. 13. This finding directly undermines Teva’s allegation that Ferring pursued this
litigation in bad faith.
ln short, Judge Brieant’s dismissal of the antitrust claims is simply more evidence, in
addition that already before the Court, as to why Teva should not be awarded attorneys’ fees in
this action.
Respectfully submitted,
Francis DiGiovanni
FD:rkl
Enclosure
cc: Clerk of the Court (via ECF and hand)
Josy W. Ingersoll, Esq. (via hand)
William F. Long, Esq. (via e-mail)
Dennis J . Mondolino, Esq. (via e-mail)
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