Free Answer to Counterclaim - District Court of Delaware - Delaware

Case 1:08-cv-00339-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE TAKEDA PHARMACEUTICAL COMPANY LIMITED, a Japanese Corporation, and TAP PHARMACEUTICAL PRODUCTS INC., a Delaware Corporation, Plaintiffs, v. BARR PHARMACEUTICALS, INC., a Delaware Corporation, and BARR LABORATORIES, INC., a Delaware Corporation, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

C.A. No. 08-339 (SLR)

PLAINTIFFS' REPLY TO BARR LABORATORIES, INC.'S COUNTERCLAIM Plaintiffs-Counterclaim Defendants Takeda Pharmaceutical Company Limited ("Takeda") and TAP Pharmaceutical Products Inc. ("TAP"), by their undersigned attorneys, herein reply to the Counterclaim of Defendant-Counterclaimant Barr Laboratories, Inc. ("Barr") as follows: 62. Plaintiffs admit that Barr's Counterclaims purport to arise pursuant to Title

35 U.S.C. and 28 U.S.C. §§ 2201 and 2202. Plaintiffs admit that Barr purports to invoke the jurisdiction of the Court pursuant to 29 [sic] U.S.C. §§ 1338 and 2201. Plaintiffs admit that venue is proper in this Court. 63. Plaintiffs admit that they have filed a Complaint and hereby repeat and

reallege each and every allegation contained in the Complaint and admit that a justiciable controversy exists between the parties hereto with respect to infringement and validity of certain claims of U.S. Patent Nos. 5,464,632, and 6,328,994.

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The Parties 64. Upon information and belief, Plaintiffs admit the allegations in

paragraph 64 of Barr's Counterclaims. 65. 66. Plaintiffs admit the allegations in paragraph 65 of Barr's Counterclaims. Plaintiffs admit the allegations in paragraph 66 of Barr's Counterclaims. The Controversy 67. 68. 69. 70. Plaintiffs admit the allegations in paragraph 67 of Barr's Counterclaims. Plaintiffs admit the allegations in paragraph 68 of Barr's Counterclaims. Plaintiffs admit the allegations in paragraph 69 of Barr's Counterclaims. Upon information and belief, Plaintiffs admit the allegations in

paragraph 70 of Barr's Counterclaims. 71. Upon information and belief, Plaintiffs admit the allegations in

paragraph 71 of Barr's Counterclaims. 72. Plaintiffs admit the allegations in paragraph 72 of Barr's Counterclaims. COUNT ONE (Alleged Non-Infringement of the '994 Patent) 73. Plaintiffs repeat and re-allege their responses to paragraphs 62-72 of

Barr's Counterclaims as if fully set forth herein. 74. Plaintiffs deny the allegations in paragraph 74 of Barr's Counterclaims. COUNT TWO (Alleged Invalidity of the '994 Patent) 75. Plaintiffs repeat and re-allege their responses to paragraphs 62-74 of

Barr's Counterclaims as if fully set forth herein.

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76.

Plaintiffs deny the allegations in paragraph 76 of Barr's Counterclaims. PRAYER FOR RELIEF

WHEREFORE, Plaintiffs seek the following relief: A. An order dismissing Barr's Counterclaims with prejudice and denying each and every Prayer for Relief sought by Barr; B. An order granting each and every Prayer for Relief sought by Plaintiffs in the Complaint; C. A declaration that this is an exceptional case, and an award of attorneys' fees from Barr in this action pursuant to 35 U.S.C. § 285; D. An award of costs and expenses of Plaintiffs in prosecuting its affirmative claims and in defending Barr's Counterclaims; and E. Such further and other relief as this Court determines to be just and proper. MORRIS, NICHOLS, ARSHT & TUNNELL LLP

/s/ Rodger D. Smith II
Jack B. Blumenfeld (#1014) Mary B. Graham (#2256) Rodger D. Smith II (#3778) James W. Parrett, Jr. (#4292) 1201 N. Market Street P.O. Box 1347 Wilmington, DE 19899-1347 (302) 658-9200 [email protected] Attorneys for Plaintiffs Takeda Pharmaceutical Company Limited and TAP Pharmaceutical Products Inc.

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OF COUNSEL: Eric J. Lobenfeld Tedd W. Van Buskirk Arlene L. Chow Dillon Kim HOGAN & HARTSON LLP 875 Third Avenue New York, NY 10022 (212) 918-3000 Philippe Y. Riesen HOGAN & HARTSON LLP Shinjuku Center Building, 46th Floor 25-1 Nishi-Shinjuku 1-chome Shinjuku, Tokyo 163-0646 Japan (81) 3-5908-4070 Attorneys for Plaintiff Takeda Pharmaceutical Company Limited William F. Cavanaugh Stuart E. Pollack Chad J. Peterman Patrick S. Almonrode PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, NY 10036 (212) 336-2000 Attorneys for Plaintiff TAP Pharmaceutical Products Inc. July 17, 2008
2413684

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CERTIFICATE OF SERVICE I hereby certify that on July 17, 2008, I caused the foregoing to be electronically filed with the Clerk of the Court using CM/ECF which will send electronic notification of such filing to the following: Richard L. Horwitz, Esq. POTTER ANDERSON & CORROON LLP [email protected] Additionally, I hereby certify that true and correct copies of the foregoing were caused to be served on July 17, 2008, upon the following individuals in the manner indicated: BY E-MAIL AND HAND DELIVERY Richard L. Horwitz, Esq. David E. Moore, Esq. POTTER ANDERSON & CORROON LLP Hercules Plaza 6th Floor 1313 N. Market Street P.O. Box 951 Wilmington, DE 19899 [email protected] [email protected] BY E-MAIL Thomas J. Meloro, Esq. Michael W. Johnson, Esq. Colman B. Ragan, Esq. Kathryn M. Fugina, Esq. WILLKIE FARR & GALLAGHER LLP 787 Seventh Avenue New York, NY 10019-3099 [email protected] [email protected] [email protected] [email protected]

/s/ Rodger D. Smith II
______________________________________ Rodger D. Smith II (#3778)