Free Motion for Miscellaneous Relief - District Court of Delaware - Delaware

Case 1:08-cv-00191-JJF

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Case 1:08-cv-00191-JJF

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relates to ANDA No. 77-132, which was filed by Teva USA with the FDA for approval to market a generic version of Procter & Gamble's ACTONEL® product in 5 mg, 30 mg, and 35 mg forms. 3. 4. On November 6-8, 2006, this Court held a trial on the merits in the Prior Action. Before trial in the Prior Action, Teva USA stipulated for purposes of that

litigation that its commercial marketing of its products at issue in the Prior Action would infringe claims 4, 16, and 23 of the '122 Patent if those claims were valid. As a result, the sole issue litigated during that trial was the validity of those claims. 5. Teva USA agrees, for purposes of this action, that its commercial marketing of its

proposed generic version of the 35 mg ACTONEL® tablets with calcium carbonate tablets would also infringe claims 4, 16, and 23 of the '122 Patent if those claims are valid. As a result, the only issue to be litigated in this action is the validity of those claims. 6. Procter & Gamble and Teva USA agree that, subject to any appeal, the Court's

determination in the Prior Action with respect to the validity of claims 4, 16, and 23 of the '122 Patent is dispositive of the validity of those claims in this case as well. 7. On April 30, 2008, the parties filed a Joint Motion for Entry of Judgment, which

requested the Court to enter judgment in this case, but recited the parties' disagreement on the form of that judgment. 8. Exhibit A. 9. The parties agree that when the Court enters judgment in the Prior Action, it may The parties have now agreed on a form of judgment, which is attached hereto as

immediately enter a judgment in this case in the form of Exhibit A.

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DB02:6828645.1 058956.1021

Case 1:08-cv-00191-JJF

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Case 1:08-cv-00191-JJF

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