Friday, May 20, 2016

Threadbare Allegation of Induced Infringement Insufficient to Survive Motion to Dismiss

The court granted defendant's motion to dismiss plaintiff's ANDA induced infringement claim for failure to state a claim based on defendant's marketing and sales. "To survive a motion to dismiss, [plaintiff] is charged with providing adequate factual allegations that set forth a plausible claim for relief such that there is a reasonable expectation that discovery will uncover relevant evidence. Despite the marketing of [the accused drug] for at least ten months, [plaintiff] offers no such allegations. . . . [T]elling a patient that thirty capsules may last a year in no way constitutes '[e]vidence of active steps taken to encourage direct infringement.' Moreover, a threadbare allegation stating that [the accused drug] can be used for acute gout flares is not the same as stating [it] should be used, explaining how to do so in an infringing manner, and establishing that patients have followed those instructions."

Takeda Pharmaceuticals USA, Inc. v. West-Ward Pharmaceutical Corp. et al, 1-14-cv-01268 (DED May 18, 2016, Order) (Robinson, J.)

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