Free Letter - District Court of Delaware - Delaware

Case 1:O5—cv-00854-JJF Document 18 Filed O1/27/2006 Page 1 of 2
MoRR1s, NICHOLS, ARSHT & TUNNELL LLP
1201 NORTH MARKET STREET
P.O. Box 1347
WILMINGTON, DELAWARE 19899-1347
302 658 9200
JACK B. BLUMENFELD 302 658 3989 FAX
302 351 9291
302 425 3012 FAx
jblumen{`[email protected]
January 27, 2006
BY ELECTRONIC FILING
The Honorable Kent A. Jordan
United States District Court
844 King Street
Wilmington, DE 19801
Re: Boehringer Ingelheim v. Barr; C.A. No. 05-700 (KAJ)
Boehringer Ingelheim v. Mylan; C.A. No. 05-854 QKAJ [
Dear Judge J ordan:
I am writing pursuant to D.Del. LR 7.l.2(c) to bring to the Court’s attention the
recent decision in Novartis Pharm. Corp. v. Teva Pharm. USA, Inc., 2005 WL 3664014 (D.N.J.
Dec. 30, 2005) (attached), in connection with Barr’s and Myla11's pending motions to strike
Boehringer's willfulness allegations. In Novartis, the Court denied a similar motion, stating:
Although Teva is correct in stating that Glaxo stands for the
proposition that an ANDA tiling, without more, does not constitute
willful infringement, it is possible that Novartis may be able to
show activity in addition to the ANDA filing to support the issue
of willfulness. As such, under Yamanouchi, Novartis is entitled to
proceed with litigation under the current state of the pleadings.
Judge Cavanaugh's analysis in Novartis is similar to that of Chief Judge
Robinson's in the AstraZeneca case cited in Boehringer's briefs.
Respectfully,
Blumenfeld
JBB/bav
Attachment

Case 1:05-cv-00854-JJF Document 18 Filed O1/27/2006 Page 2 of 2
The Honorable Kent A. Jordan
January 27, 2006 C
Page 2
cc: Peter T. Dalleo, Clerk (By Hand w/Attachment)
J osy W. Ingersoll, Esquire (By Hand w/Attachment)
Mary B. Matterer, Esquire (By Hand w/Attachment)
Glenn J. Pfadenhauer, Esquire (By Fax w/Attachment)
David J. Harth, Esquire (By Fax w/Attachment)
Steven C. Cherny, Esquire (By Fax w/Attachment)
Kenneth G. Schuler, Esquire (By Fax w/Attachment)