Free Motion for Extension of Time to File Response/Reply - District Court of Delaware - Delaware

Case 1:04-cv-00884-SLR

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Filed 06/23/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ---------------------------------------------------------------x FERRING B.V. : : : Plaintiff, : : v. : : TEVA PHARMACEUTICALS USA, INC. and : TEVA PHARMACEUTICAL INDUSTRIES : LIMITED : Defendants. : : ---------------------------------------------------------------x

Civil Action No. 04-884-SLR

FERRING B.V.'S MOTION FOR EXTENSION OF TIME Plaintiff Ferring B.V. ("Ferring") submits this motion for a short extension of time (9 business days) to respond to the Motion to Dismiss Complaint and for an Award of Attorneys' Fees and Costs ("Motion") (D.I. 61) filed by defendants Teva Pharmaceuticals USA, Inc. and Teva Pharmaceutical Industries Limited (collectively "Teva"). Teva filed and served its Motion after business hours on June 19, 2006, accompanied by a detailed opening brief and 120 pages of exhibits (D.I. 62). Pursuant to Local Rule 7.1.2(a)(2), Ferring is due to file its answering brief in opposition by July 3, 2006. Ferring requests a short extension of this filing deadline to allow Ferring to file its answering brief on July 17, 2006. Ferring sets forth below the grounds for its motion. I. Ferring's Answering Brief Will Require Significant Time and Effort This is a patent infringement case wherein Ferring has accused Teva of infringement of a pharmaceutical patent. The case has a complicated history due to the

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decision in Ferring B.V. and Aventis Pharmaceuticals Inc. v. Barr Laboratories Inc., Case No. 02 CV 9851 (S.D.N.Y.) ("Ferring v. Barr"), which pertains to the patent-insuit. In a controversial decision, on February 7, 2005, the Southern District of New York in Ferring v. Barr found on summary judgment that Ferring's patent-in-suit was unenforceable due to inequitable conduct. The instant case was stayed while the Ferring v. Barr decision was on review to the United States Court of Appeals for the Federal Circuit. The Ferring v. Barr decision was affirmed by the Federal Circuit, with a vigorous 21-page dissent by Circuit Judge Newman. Ferring's petition for rehearing was denied on April 10, 2006. In early September, Ferring will file a petition for writ of certiorari to the United States Supreme Court. Pursuant to the stipulation between the parties, entered by this Court on March 2, 2006, the stay in this proceeding is no longer in effect. Teva's motion to dismiss and motion for attorneys fees relies entirely on the Ferring v. Barr decision, which is expected to be reviewed by the Supreme Court in the very near future. Teva's motion is therefore complicated and will require significant time and effort in order to properly respond. In its Motion, Teva raises numerous issues: (1) (2) 285; and (3) an award of costs and attorneys fees (which does not automatically follow a dismissal of Ferring's complaint; a determination of whether the case is "exceptional" under 35 U.S.C. §

even in the event of a determination of inequitable conduct and requires additional inquiries).

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Ferring submits that the abundance of issues present in Teva's motion warrants a short extension of time to file an answering brief. II. The Presence of the Independence Day Holiday, a Firm Retreat, and Trial Preparation Make Responding to Teva's Motion in the Ordinary Timeframe Extraordinarily Difficult Moreover, the timing of Teva's motion also warrants the 9-day extension of time requested by Ferring. Ferring's response period currently spans the Independence Day holiday, as well as an important law firm retreat for Ferring's counsel. In addition, Ferring's counsel is significantly involved in preparing for a trial before the International Trade Commission that begins in July. These factors make responding to Teva's motion in the ordinary timeframe very difficult and provide an adequate basis for the grant of an extension of time. Finally, Teva has not and cannot show that they would be prejudiced by a short extension of time to respond to its multi-faceted motion. In fact, upon Ferring's request that Teva agree to this short extension, Teva responded that it would agree to the extension provided that Ferring dismiss the complaint with prejudice--something Ferring is unwilling to do. In view of the aforementioned circumstances of this case and the Ferring v. Barr decision, Ferring will only agree to dismiss its complaint without prejudice. III. CONCLUSION In light of these considerations, Ferring respectfully requests that the Court grant its motion for a 9 business day extension of time, allowing Ferring until July 17, 2006, to file its answering brief in opposition to Motion to Dismiss Complaint and for an Award of Attorneys' Fees and Costs.

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Date: June 23, 2006

/s/ Francis DiGiovanni Francis DiGiovanni (#3189) CONNOLLY BOVE LODGE & HUTZ LLP The Nemours Building 1007 North Orange Street Wilmington, DE 19899-2207 (302) 888-6316 Attorneys for Plaintiff Ferring B.V.

OF COUNSEL: Dennis J. Mondolino Christine A. Pepe McDermott, Will & Emery, LLP 340 Madison Avenue New York, NY 10017 Phone: 212-547-5414

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ---------------------------------------------------------------x FERRING B.V. : : : Plaintiff, : : v. : : TEVA PHARMACEUTICALS USA, INC. and : TEVA PHARMACEUTICAL INDUSTRIES : LIMITED : Defendants. : : ---------------------------------------------------------------x ORDER WHEREAS, having considered defendant the motion of Ferring B.V. ("Ferring") for an extension of time to file its answering brief to Defendants' Motion to Dismiss Complaint and for an Award of Attorneys' Fees and Costs, IT IS SO ORDERED, this ____ day of June, 2005, that Ferring may file its answering brief to Defendants' Motion to Dismiss Complaint and for an Award of Attorneys' Fees and Costs on or before July 17, 2006.

Civil Action No. 04-884-SLR

_______________________________________ United States District Judge

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STATEMENT PURSUANT TO LOCAL RULE 7.1.1 On June 20th, Ferring's counsel requested a 10-day extension of time, as sought in the attached motion, via an e-mail from Christine Pepe to William Long. On June 21st, Mr. Long responded, refusing to grant an extension unless Ferring dismissed its Complaint with prejudice. On June 22nd, the undersigned reiterated Ferring's request for a 10-day extension via e-mail to Josy Ingersoll. On June 23rd, Ms. Ingersoll responded, agreeing to a 3-business-day extension (through July 7), but refusing to agree to an extension through July 17th as requested by Ferring.

/s/ Francis DiGiovanni Francis DiGiovanni (#3189)

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CERTIFICATE OF SERVICE I hereby certify that on the June 23, 2006, I electronically filed Ferring B.V.'s Motion for Extension of Time with the Clerk of the Court using CM/ECF which will send notification of such filing(s) to the following: Josy W. Ingersoll, Esq. Young Conaway Stargatt & Taylor, LLP The Brandywine Building 1000 West Street, 17th Floor Wilmington, DE 19899 I further certify that on the same date I served a copy of said document by hand and e-mail to the above-listed counsel, and by e-mail on the following counsel: William F. Long Sutherland Asbill & Brennan LLP 999 Peachtree Street Atlanta, GA 30309-3996

/s/ Francis DiGiovanni Francis DiGiovanni (#3189)
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