Monday, August 31, 2009

"Promoting Off-Label Use" Does Not Support Unclean Hands Defense, But May be Considered in Determining Injunctive Relief

The court granted plaintiff's motion to strike defendants' affirmative defense of unclean hands based on plaintiff's alleged improper marketing activities promoting off-label uses of its product. "[I]t is clear that Defendants have not . . . alleged that such misconduct gave rise to or affected the patent rights or cause of action now pursued by [plaintiff]. In the absence of such a connection, an unclean hands defense is not viable, as 'courts in this Circuit have generally been clear that the connection between the misconduct and the claim must be close' . . . [However] evidence of such misconduct may be considered as a factor affecting [plaintiff's] ability to obtain a permanent injunction as relief in this proceeding."

Pfizer Inc., et al. v. Zenith Laboratories, et al., 2-01-cv-00193
(NJD August 27, 2009, Opinion) (Hochberg, J.)

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