Thursday, August 6, 2009

Circumstantial Evidence Establishes Inducement to Infringe by Defendant's ANDA Products

Following a bench trial, the court found that defendant's ANDA products "will induce infringement" of the asserted patents because, among other reasons: (i) defendant's "[l]abeling specifically encourages infringement," (ii) defendant's "[l]abeling nowhere advises against the mixing or diluting of the ANDA Products to infringing concentrations", (iii) defendant's "collaboration with [a third party] to market and sell its ANDA Products to customers that will only use the products in infringing ways," (iv) defendant's "act of seeking an 'A' substitutability rating for its ANDA Products, so they may be substituted for all prescriptions of [plaintiff's product] . . . without any need for physician intervention or approval," (v) defendant's "acts of targeting all [customers of plaintiff's product] with the intent that purchasers of the ANDA Products will use them for all the same purposes," (vi) "sales forecasts that showed a marked increase in sales of [noninfringing concentrations of defendant's] ANDA Products immediately after [defendant] submitted an amendment removing [a product with an infringing concentration] from its ANDA submission," (vii) defendant's "targeting of group purchasing organizations . . . [where] dilution and mixing of higher concentrations . . . is a routine practice," and (viii) defendant "did not obtain an opinion of counsel relating to its possible infringement of [plaintiff's] asserted patents."

Abraxis Bioscience, Inc. v. Navinta LLC, 3-07-cv-01251
(NJD August 3, 2009, Opinion) (Pisano, J.).

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