Apotex, Inc. v. Cephalon, Inc.

Opinion

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

APOTEX INC., Plaintiff-Appellee,

v.

CEPHALON, INC., Defendant-Appellant,

AND

BARR LABORATORIES, INC., MYLAN LABORATORIES, INC., TEVA PHARMACEUTICAL INDUSTRIES, LTD., TEVA PHARMACEUTICALS USA, INC., RANBAXY LABORATORIES, LTD., AND RANBAXY PHARMACEUTICALS, INC., Defendants. ______________________

2012-1417 ______________________

Appeal from the United States District Court for the Eastern District of Pennsylvania in No. 06-CV-2768, Judge Mitchell S. Goldberg. ______________________

Decided: April 8, 2013 ______________________ 2 APOTEX, INC. v. CEPHALON, INC.

ROBERT B. BREISBLATT, Katten Muchin Rosenman, LLP, of Chicago, Illinois, argued for plaintiff-appellee. With him on the brief were BRIAN J. SODIKOFF, MARTIN S. MASAR, III and CHRISTINE E. BESTOR; HOWARD R. RUBIN and CHRISTOPHER D. JACKSON, of Washington, DC.

WILLIAM F. LEE, Wilmer Cutler Pickering Hale and Dorr, LLP, of Boston, Massachusetts, argued for defend- ant-appellant. With him on the brief were MARK C. FLEMING, GREGORY P. TERAN, DANIEL M. ESRICK, and ANDREW J. DANFORD; WILLIAM G. MCELWAIN, and CAROLYN JACOBS CHACHKIN, of Washington, DC; ROBERT J. GUNTHER, JR. and OMAR KHAN, of New York, New York. ______________________

Before RADER, Chief Judge, LOURIE, and O'MALLEY, Circuit Judges. PER CURIAM. We affirm the trial court’s judgments of invalidity and unenforceability with respect to Cephalon, Inc.’s (“Cepha- lon”) U.S. Reissue Patent No. 37,516. We do so with the understanding that the court’s inequitable conduct find- ing was based on the conduct of Dr. Peter Grebow and Mr. Richard Burgoon, while acting within the course and scope of their employment or as officers and/or employees of Cephalon. No pleading asserted that Mr. Paul T. Clark committed inequitable conduct, and we do not read the opinion below as finding that he personally committed inequitable conduct. AFFIRMED