Update March 2011: The court granted plaintiff Apotex’s motion for a declaratory judgment of non-infringement on one of the two patents-in-suit despite the defendant’s admisison of non-infringement. The court commented that a ruling on both patents-in-suit was required to trigger the 180 day exclusivity period under the Hatch-Waxman Act.
Update Spring 2010: E.D. PA Judge Mitchell Goldberg denied the defendant’s motion to dismiss a number of consolidated cases. The court held that the complaint plausibly alleges that the patent settlements extended beyond the permissible scope of the defendant’s patent rights.
In Walgreens Co. et al. v. Cephalon Inc. et al., Walgreens Co., Safeway Inc., The Kroger Co., American Sales Co. Inc., and Heb Grocery Company LP have filed suit against Cephalon Inc., Teva Pharmaceutical Industries Ltd., Barr Pharmaceuticals Inc., Mylan Pharmaceuticals Inc., and Ranbaxy Laboratories Ltd., accusing Cephalon of striking illegal deals with the other generic drug-maker defendants to keep copycat version of narcolepsy drug Provigil off the market, thereby conspiring to lock up the U.S. market for the drug. According to the Plaintiffs’ complaint, Cephalon agreed to cough up more than $200 million in exchange for agreements to keep the generic versions of Provigil off the market through April 2012. The so-called exclusion payments to the generic companies were disguised as licenses and/or supply agreements for Provigil’s active ingredient or product development agreements for unrelated products.