Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-00884-SLR Document 77 Filed 09/19/2006 Page 1 of 2
Youuc CoNAwAY STARGATT & TAYLOR, LLP
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September 19, 2006
BY E-FILING
The Honorable Sue L. Robinson
United States District Court
844 King Street
Wilmington, DE 19801
Re: Ferrirzg B. VY v. Teva Pharmaceuticals USA, Inc., et al.
Civil Action No. 04-884-SLR
Dear Chief Judge Robinson:
This responds to Ferring’s letter of September 18 providing a full transcript of the
motion to dismiss hearing in Meyer [nc. etal. v. Ferring B. V etal., No. 05-C\/-2237
(S.D.N.Y.). A fair reading of the transcript confirms that Judge Brieant has not changed his
mind regarding Feriingjs flagrant inequitable conduct before the Patent and Trademark Office.
Judge Brieant did not grant Feiring’s motion to dismiss the antitrust and related claims brought
by the desmopressin purchaser plaintiffs. Furthermore, Judge Brieant made a number of
additional comments not cited by Ferring which reflect a continuing belief that Feriing clearly
committed inequitable conduct. For example:
• "lf there had not been the inequitable conduct, there will be no question that you
couldn’t attack [the patent]." (p. 13.)
• "[The patent] was finally issued after they got those great affidavits?" (p. 36.)
• "And do you think when [Ferring and Aventis] talked that Ferring, who wanted to enter
into a license agreement or who already had entered into it, tells them ‘Oh, by the way,
you ought to know something; those two phonies who put in the affidavits, they really are
people that we didn’t disclose."’ (p. 36.)
• Finally, with respect to the knowledge of Ferring’s inequitable conduct by its licensee
Aventis: "Thirty years when you have a commercial relationship doesn’t tell you your
partner [i.e., Fening] is a crook." (p. 35.)
Ferring claims that the statement it cited from Judge Brieant applies to inequitable
conduct as a whole and not to the appropriateness of summary judgment because Judge Brieant
used the phrase "the whole thing." It is clear though that Judge Brieant did not intend for his off-
hand comment to supersede the binding nature of his final judgment. The context shows that
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Case 1:04-cv-00884-SLR Document 77 Filed O9/19/2006 Page 2 of 2
YOUNG CONAWAY STARGATT & TAYLOR, LLP
The Honorable Sue L. Robinson
September 19, 2006
Page 2
"the whole thing" must refer to the summary judgment ruling, not the existence of inequitable
conduct. The issue in Judge Brieant’s ruling, the Federal Circuit’s afiirmance, and Judge
Newman’s dissent was whether summmjy judgment of inequitable conduct was appropriate. That
issue — the appropriateness of summary judgment — was "the whole thing" in question. Judge
Brieant held, and the Federal Circuit agreed, that whether Ferring committed knowing
inequitable conduct was not a close case, and therefore, summary judgment was indeed
appropriate.
Teva respectfully requests that its motion to dismiss and for attorney’s fees be
granted. We would be pleased to address any further questions or concerns the Court has
concerning this issue.
Respectfully submitted, A
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J osy W. Ingersoll (No. 1088)
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cc: Clerk of the Court (by hand and e—filing)
Francis DiGiovanni, Esquire (by hand and e-filing)
Dennis J. Mondolino, Esquire (by e—mail)
William F. Long, Esquire (by e-mail)
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