Generic's Bioequivalence With Brand Name Drug Does Not Establish Infringement of Patent Protecting Brand Name Drug

Following a bench trial and claim construction the court determined that defendants' ANDA for a generic version of Fentora® did not infringe the patents-in-suit. "Regardless of how the ANDA product may be working, the only proffered evidence that the ANDA product actually results in an increase in the rate and/or extent of absorption across the oral mucosa is the fact that the ANDA product is 'bioequivalent' to Fentora®. . . . [T]he inquiry is not identicality to Fentora®, it is whether the ANDA product meets the limitations of the asserted . . . patent claims."

Cephalon Inc., et. al. v. Watson Pharmaceuticals Inc., et. al., 1-08-cv-00330 (DED March 11, 2011, Order) (Robinson, J.)