Free Reply Brief - District Court of Delaware - Delaware

Case 1 :04-cv-00884-SLR Document 43 Filed O3/29/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
FERRING B.V., )
)
Plaintiff, )
)
v. )
) Civil Action No.: 04-884-SLR
TEVA PHARMACEUTICAL, )
INDUSTRIES LTD. and TEVA )
PHARMACEUTICALS USA, INC., )
)
Defendants. )
)
TEVA PHARMACEUTICALS USA, INC. &
TEVA PHARMACEUTICAL INDUSTRIES LIMITED’S
REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE
AMENDED ANSWERS AND COUNTERCLAIMS
Teva respectfully submits this reply in support of its Motion for Leave to Pile Amended
Answers and Counterclaims.
Rule l5, which governs the right to amend, mandates that "leave shall be freely given
when justice so requires." As noted in Teva’s opening brief, the Third Circuit has been said to
show "strong liberality in allowing amendment? Bair v. City of Atlantic City, 100 F. Supp. 2d
262, 265 (D.N.J. 2000).
Ferring’s arguments for avoiding the general presumption in favor of amendment are
frivolous. First, Ferring argues that "[u]pon reversal by the Federal Circuit of the Barr
Judgment," the claims and defenses Teva seeks to add will become moot. (Opposition, p. 2.)
That argument is simply wrong. If Ferring ultimately prevails on appeal, the result will be that
summary judgment is vacated and the case will be remanded for trial. The defense of inequitable
conduct will not even be mooted for Barr, much less for Teva.
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Case 1:04-cv-00884-SLR Document 43 Filed O3/29/2005 Page 2 of 4
Given that Ferring’s success in appealing the current judgment against Barr does not
affect Teva’s right to raise the same defenses as Barr, Ferring’s argument that a reversal is
"likely" is completely irrelevant.] Moreover, a reversal is not likely.2
Ferring does not have any argument for prejudice relating solely to Teva’s motion to
amend. Ferring’s arguments are based on summary judgment being granted in Teva°s favor and
are duplicative of the arguments raised in its opposition to summary judgments. Teva refutes all
of Ferring’s arguments in Teva’s Reply in Support of Motion for Leave to File Summary
Judgment on the Basis of Collateral Estoppel and Opposition to Ferring B.V’s Cross—Motion to
Stay ("Reply in Support of Collateral Estoppel"), tiled concurrently herewith. In short, it is
Teva, not Ferring, that is at risk of prejudice by virtue of being kept from the desmopressin
acetate market through Ferring’s continued wielding of an unenforceable patent, causing Teva to
lose sales it can never recoup.
The sole case cited by Ferring in which prejudice to the non—moving party justified denial
of amendment is Cornell & Co. v. Occupational Safety & Health Review Comm., 573 E.2d 820
(3d Cir. 1978). In Cornell, a party was held to be prejudiced by an amended pleading where the
amended pleading "completely changed the nature of the charges" against the 1101'l—1TlOVll’1g party
and the critical fact witnesses (who were transient workers) were not available to address the
amended pleading. 573 F.2d at 824—25. Nothing even close to the Cornell facts are present here.
I Equally irrelevant, not to mention, exceedingly optimistic, is Ferring’s argument
regarding the timing of an appeal. (See Teva’s Reply in Support of Motion for Summary
Judgment, filed concurrently herewith, p. 12.)
2 Ferring supports its "likelihood" argument by asserting a 40% reversal rate on claim
construction issues in the Federal Circuit. Even if the Court assumed Ferring’s 40% figure
accurately reflected Ferring’s chances on appeal — which it does not (See Teva’s Reply in
Support of Motion for Summary Judgment, filed concurrently herewith, p. 13-14.) —— then the
word that best describes Ferring’s chances of success on appeal would actually be "unlikely."
2
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Case 1:04-cv-00884-SLR Document 43 Filed O3/29/2005 Page 3 of 4
The remainder of Ferring’s arguments are simply repeats of arguments in Fe1ring’s brief
in opposition to Teva’s collateral estoppel motion. They are not relevant to the motion to amend.
Teva refutes these arguments in full in its concurrently tiled Reply in Support of Collateral
Estoppel, and hence, does not repeat that discussion herein.
For the forgoing reasons, Teva’s motion to amend should be granted.
Dated: March 29, 2005
YOUNG CONAWAY STARGATT & TAvLoR LLP
f
J osy W. Ingersoll (No. 1088)
Karen E. Keller (No. 4489)
The Brandywine Building
1000 West St., 17th Floor
P.O. Box 391
Wilmington, Delaware 19899-0391
Phone: 302-571-8872
Phone: 302-571-6600
[email protected]
Attorneys for Defendants Teva Pharmaceutical
Industries Ltd. and Teva Pharmaceuticals USA, Inc.
SUTHERLAND AsB1Lt.& BRENNAN LLP
William F. Long
N.E.B. Minnear
999 Peachtree Street
Atlanta, Georgia 30309-3996
Phone: 404-853-8000
Fax: 404-853-8806
3
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Case 1:04-cv-00884-SLR Document 43 Filed O3/29/2005 Page 4 of 4
CERTIFICATE OF SERVICE
I, J osy W. Ingersoll, Esquire, hereby certify that on March 29, 2005, I caused t0 be
electronically tiled a true and correct copy of the foregoing document with the Clerk of the Court
using CM/ECE, which will send notification that such tiling is available for viewing and
downloading to the following counsel of record:
Francis DiGiovanni, Esquire
Connolly Bove Lodge & I-Iutz LLP
The Nemours Building
1007 North Orange Street
P.O. Box 2207
Wilmington, DE 19899
I further certify that on March 29, 2005, I caused a copy of the foregoing document to be
served by hand delivery on the above-listed counsel of record and on the following non-
registered participants in the manner indicated:
BY EMAIL
Dennis J. Mondolino, Esquire
Esther I-I. Steinhauer, Esquire
Jeffrey M. Gold, Esquire
Morgan Lewis & Bockius, LLP
101 Park Avenue
New York, NY 10178-0060
YOUNG CONAWAY STARGATT & TAYLOR, LLP
é? ZW ézlmz LQ et-w2.lj
Josy W. ngersoll (N . 1088)
The Brandywine Building
1000 West Street, 17th Floor
Wilmington, Delaware 19801
(302) 571-6600
j [email protected]
Attorneys for Defendants Teva Pharmaceutical
Industries Ltd. and Teva Pharmaceuticals USA, Inc.
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