Free Motion to Dismiss - District Court of Delaware - Delaware

Case 1:07-cv-00754-GMS

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Filed 07/28/2008

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ABBOTT LABORATORIES, an Illinois corporation, Plaintiff, v. BANNER PHARMACAPS, INC., a Delaware corporation, Defendant. MOTION FOR VOLUNTARY DISMISSAL, WITH PREJUDICE Plaintiff, Abbott Laboratories, hereby moves for voluntary dismissal of all claims in its complaint, with prejudice, pursuant to Fed. R. Civ. P. 41(a)(2). In support of this motion, Abbott states as follows: 1. The two patents at issue in this case, U.S. Patent Nos. 4,988,731 and 5,212,326 Civil Action No. 07-CV-00754-GMS

(collectively, the "patents"), expired on January 29, 2008. (See Compl. (D.I. 1), Ex. A & B.) 2. Because the patents have expired, Abbott believes it is appropriate to voluntarily

dismiss all of its claims against Banner in this case. 4. Abbott requested that Banner consent to a stipulation of dismissal that would

dispose of all claims and counterclaims in this action, but Banner has refused. 5. Banner has asserted two counterclaims against Abbott. (See Answer (D.I. 7).)

Banner's first counterclaim merely seeks a declaratory judgment of non-infringement of the patents. (See id.) This counterclaim is unquestionably moot, given the expiry of the patents, and Abbott will separately move to dismiss it. Banner's second counterclaim purports to allege a claim against Abbott for unfair competition. (Id.) Abbott previously moved to dismiss that

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counterclaim because it is deficient as a matter of law. (See generally Motion to Dismiss (D.I.11).) That motion is pending. 7. Banner will not be prejudiced by the entry of a dismissal with prejudice of

Abbott's claims. For all of these reasons, Abbott respectfully moves the Court to enter an order dismissing, with prejudice, of Abbott's claims against Banner in this action, with each party to bear its own costs, fees, and disbursements. Dated: July 28, 2008 Respectfully submitted, CONNOLLY BOVE LODGE & HUTZ LLP

By: /s/ Paul E. Crawford Paul E. Crawford (DE Bar No. 0493) E-mail: [email protected] 1007 N. Orange St. P.O. Box 2207 Wilmington, DE 19899 (T) 302.658.9141 (F) 302.658.5614 Attorneys for Abbott Laboratories Of Counsel Daniel E. Reidy; Bar No. 2306948 E-mail: [email protected] James R. Daly; Bar No. 6181714 Email: [email protected] Jason G. Winchester; Bar No. 6238377 Email: [email protected] Melissa B. Hirst; Bar No. 6282498 Email: [email protected] JONES DAY 77 West Wacker Drive, Suite 3500 Chicago, Illinois 60601-1692 (T): 312.782.3939 (F): 312.782.8585 Perry C. Siatis ABBOTT LABORATORIES

Case 1:07-cv-00754-GMS

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100 Abbott Park Road Abbott Park, Illinois 60064-6034

Case 1:07-cv-00754-GMS

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CERTIFICATE OF SERVICE I hereby certify that, on July 28, 2008, a true and correct copy of the foregoing document, entitled Motion for Voluntary Dismissal, With Prejudice was served on the following persons via the following methods: VIA ELECTRONIC MAIL Charles J. Raubicheck FROMMER, LAWRENCE & HOAG LLP 745 Fifth Avenue New York, NY 10151 [email protected] VIA ECF FILING: George Pazuniak Anna Martina Tyreus WOMBLE CARLYLE SANDRIDGE & RICE, PLLC 222 Delaware Avenue, Suite 1501 Wilmington, DE 19801 [email protected] [email protected] /s/ Paul E. Crawford Paul E. Crawford, Esquire (#493) [email protected]