Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-00884-SLR Document 75 Filed 09/15/2006 Page 1 of 2
YOUNG CONAWAY STARGATT & TAYLOR, LLP
THE BRANDYWINE Burromo
1000 WEST STREET, 17Ti-1 Froon
JOSY W. INGERSOLL (NO. 1088) WILMINGTQN, DELA\VARE [980] (302) 57l·6600
DIRECT DIAL: 302-571-6672 (302) 571-1253 mx
DIRECT FAX: 302-576-3301 p_O_ BOX 391 (800) 253—2234 (DE ONLY)
j1I1g€1”SOll@yCS‘[.COlT1 W]LN[[NGTON’ DELAWARE ]9899-()3Q] WWW.yO1mgCOI16W8y.COm
September 15, 2006 T
BY E-FILING
The Honorable Sue L. Robinson
United States District Court
844 King Street
Wilmington, DE 19801
Re: Ferring B. VY v. Teva Pharmaceuticals USA, Inc., et al.
Civil Action No. 04-884-SLR
Dear Chief Judge Robinson: A
We are counsel to Teva in the above—captioned action and write in response to
Ferring’s letter of September 13, 2006. In its letter, Ferring attaches additional documents in
opposition to Teva’s Motion to Dismiss and For Attorney’s Fees (DJ. #61) and in support of its
Opposition and Cross—l\/lotion to Stay (D.1. #69). Neither ofthe documents submitted by Ferring
supports its position.
One of the documents submitted by Ferring is a copy of its petition for certiorari
to the Supreme Court seeking review of the Federal Circuit’s aftirmance ofthe Barr decision.
Ferring’s petition does not affect any issue before this Court. Indeed, Ferring’s Cross-Motion to
Stay was premised solely on Ferring’s representation that it would tile this petition for certiorari.
(See D.I. #70, p. 13 ("1n early September, Ferring and Aventis will tile petitions for writ of
certiorari to the United States Supreme Court.").)
The other document attached by Ferring is an incomplete copy of a transcript in a
class action antitrust lawsuit against Ferring brought by purchasers of desmopressin products, a
proceeding in which Teva was not present. Meyer Inc. etal. v. F erring B. Ji et al., No. 05·CV·
2237 (S.D.N.Y.). Ferring cites a statement by Judge Brieant that his original decision entering
summary judgment against Ferring on inequitable conduct "wasn’t totally free from doubt."
Of course, without a complete transcript of this hearing (which was not provided
by Ferring), the Court cannot take full stock of Judge Brieant’s views or even evaluate the extent
to which Ferring has taken the statement out of context, whether Judge Brieant clarified his
statement later in the proceeding, or whether he made other comments that shed light on the
intent of the statement. Likewise, Teva has not seen a full copy of the transcript and, thus, does
not have a full opportunity to rebut it.
DB0l:2l92706.l 0529561012

Case 1:04-cv-00884-SLR Document 75 Filed O9/15/2006 Page 2 of 2
Youno CoNAwAY STARGATT & TAYLOR, LLP
The Honorable Sue L. Robinson
September 15, 2006
Page 2
Moreover, there is a world of difference between a close case of inequitable
conduct and a case in which the appropriateness of granting summary judgment on inequitable
conduct "wasn’t totally free from doubt.” Ferring, nevertheless, continues to confuse these two
issues. A close of case of inequitable conduct is one in which it is unclear to the finder of fact
whether inequitable conduct occurred. "Doubt" concerning the appropriateness of summary
judgment of inequitable conduct has to do with whether any reasonable finder of fact could find
that there was not inequitable conduct. Judge Brieant has held that no reasonable Ender of fact
could fail to find inequitable conduct, and his opinion has been affirmed by a Federal Circuit
panel and en banc rehearing was denied by the Federal Circuit. In other words, the issue of
inequitable conduct was not close.
In short, there is nothing new here, only a continued confusion by Ferring
between a close case of inequitable conduct and doubt as to whether any reasonable finder of fact
could possibly have not found inequitable conduct. All of the cases cited by Ferring deal with
the former situation; none deal with the latter. ‘
Teva respectfully requests the Court to lift the stay and grant its motion for
attorneys’ fees.
Respectfully submitted,
Josy W. Ingersoll (No. l088)
JVV Izc g
cc: Clerk of the Court (by e—filing and hand delivery)
Francis DiGiovam1i, Esquire (by e-filing and hand delivery)
Dennis J. Mondolino, Esquire (by e-mail)
William F. Long, Esquire (by e-mail)
DBOl:2l92706.l 0589561012