Free Response to Order - District Court of Delaware - Delaware

Case 1 :04-cv-00940-JJF Document 24 Filed 05/10/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MERCK & CO., INC., )
)
Plaintiff, )
) Civil Action No. 04-939 (JJP)
v. )
)
TEVA PHARMACEUTICALS USA, INC., )
)
Defendant. )
)
THE PROCTOR & GAMBLE CO., )
)
Plaintiff, ) Civil Action No. 04-940 (UF)
)
v. )
)
TEVA PHARMACEUTICALS USA, INC., )
)
Defendant. )
TEVA PHARMACEUTICALS USA, INC.’S REQUEST FOR
RECONSIDERATION OF THE COURT’S ORDER OF MAY 5, 2005,
DECLINING CONSOLIDATION
In accordance with Delaware Local Rule 7. l .5, Teva Pharmaceuticals USA, Inc.
respectfully requests that the Court reconsider its order of May 5, 2005, declining to
consolidate Merck & C0. v. Teva Pharmaceuticals USA, Inc., CA 04-939 (JJP), and
Proctor & Gamble C0. v. Teva Pharmaceuticals USA, [nc., CA 04-940 (HF). (D,]. # 17).
Both actions are non-jury Hatch-Waxman Act cases, in which the plaintiffs allege that
Teva’s marketing of its generic versions of ACTONEL riseclronate tablets will infringe
their patents. Both cases involve the same Abbreviated New Drug Application, both
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Case 1:04-cv-00940-JJF Document 24 Filed 05/10/2005 Page 2 of 4
involve the same approved and marketed drug, both are on the same pretrial schedule]
and both involve the same technology. Proctor & Gamble, the plaintiff in 04-940, is a
licensee under the patents Merck is asserting in 04-939.
The Court recognized that the cases have "some common issues," but cited as a
reason for denying the request the "potential for confusion to a jury." Neither of these
cases, however, is a jury case. No party has sought a jury. In fact, since both actions are
ANDA cases, trial by jury is not available. Therefore, there is no possibility of jury
confusion, and neither Merck nor Proctor & Gamble ever raised potential confusion as a
ground for its opposition to Teva’s request. Thus, the Court has set the two closely
related cases on separate tracks, headed toward separate destinations, i.e., two complex,
time-consuming bench trials, based on a misapprehension of their nature.
The Court should grant a request for reconsideration when a ruling is based on an
error of "apprehension" of fact. Brczmbles USA, Inc. v. Blocker, 735 F. Supp. 1239, 1241
(D. Del. 1990). Here, the Court has relied on a factual assumption that is not correct.
Accordingly, Teva requests that the Court reconsider its order and consolidate the two
‘ On May 9, 2005, the Court issued orders in both cases directing the parties to
submit proposed schedules. The parties, however, had already done so. See D.l. # 8 (04-
939) and D.l. # 10 (04-940). These schedules are virtually identical.
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Case 1:04-cv-00940-JJF Document 24 Filed 05/10/2005 Page 3 of 4
cases for the reasons stated in its memorandum filed March 8, 2005. (D.I. # ll (04-939);
D.I. # 16 (04-940)).
Respectfully submitted,
YOUNG, CONAWAY, STARGATT &
TAYLOR LLP
Dated: May 10, 2005 By , _ , WLS?. ”
/ Josy .1n so1l (#1088)
The Brandywine Building
1000 West Street, 17th Floor
P.O. Box 391
Wilmington, DE 19899
(302) 571-6672
[email protected]
Counsel for defendant
Teva Pharmaceuticals USA, Inc.
OF COUNSEL
James Galbraith
Maria Luisa Palmese
Antony Pfeffer
KENYON & KENYON
One Broadway
New York, NY 10004
(212) 425-7200
3
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Case 1:04-cv-00940-JJF Document 24 Filed 05/10/2005 Page 4 of 4
CERTIFICATE OF SERVICE
I, Josy W. Ingersoll, hereby certify that on May 10, 2005, I caused to be
electronically filed a true and correct copy of the foregoing document with the Clerk of
the Court using CM/ECF, which will send notification that such filing is available for
viewing and downloading to the following counsel of record:
Mary B. Graham, Esquire
Morris, Nichols, Arsht & Tunnell
1201 N. Market Street
Wilmington, DE 19801
Frederick L. Cottrell, III, Esquire
Richards, Layton & Finger
One Rodney Square
Wihnington, DE 19801
I further certify that on May 10, 2005, I caused a copy of the foregoing document
to be served by hand delivery on the above-listed counsel of record and on the following
non—registered participants in the manner indicated:
BY FEDERAL EXPRESS
Nicholas G. Barzoukas, Esquire
Howrey, Simon, Arnold & White
750 Bering Drive
Houston, TX 77057
William F. Lee, Esquire
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, MA 02109
Jgy W Ingersoll 088)
YO G CONAWAY STARGATT & TAYLOR, LLP
The Brandywine Building
1000 West Street, 17th Floor
Wilmington, Delaware 19801
Telephone: (302) 571-6600
[email protected]
Attorneys for Teva Pharmaceuticals USA, Inc.
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