Purdue Pharma v. Endo Pharmaceuticals

United States Court of Appeals for the Federal Circuit
04-1189, -1347, -1357
PURDUE PHARMA L.P.,
THE PURDUE FREDERICK COMPANY,
THE P.F. LABORATORIES, INC., and THE PURDUE PHARMA COMPANY,
Plaintiffs/Counterclaim Defendants-
Appellants,
and
EUROCELTIQUE S.A.,
Counterclaim Defendant,
v.
ENDO PHARMACEUTICALS INC.,
Defendant/Counterclaimant-
Cross Appellant,
and
ENDO PHARMACEUTICALS HOLDINGS INC.,
Defendant-Cross Appellant.
Herbert F. Schwartz, Fish & Neave LLP [now known as Fish & Neave IP group of
Ropes & Gray LLP], of New York, New York, filed a combined petition for panel
rehearing and rehearing en banc for plaintiffs/counterclaim defendants-appellants. Of
counsel were Edward C. DuMont, Jonathan G. Cedarbaum, and Seth P. Waxman,
Wilmer Cutler Pickering Hale and Dorr LLP, of Washington, DC; Pablo D. Hendler,
Duane-David Hough, Gerald J. Flattmann, Jr., Richard A. Inz, and Denise L. Loring,
Ropes & Gray LLP, of New York, New York. Of counsel was Robert J. Goldman, of
Palo Alto, California.
Edward V. Filardi, Skadden, Arps, Slate, Meagher & Flom LLP, of New York,
New York, filed a response to the petition for defendant-cross appellant
defendant/counterclaimant-cross appellant and defendant-cross appellant. With him on
the response were Constance S. Huttner, and Douglas R. Nemec. Of counsel were
David L. Cohen, and Mark D. Baker. Of counsel on the response were Nicholas L.
Coch and Donald L. Rhoads, Kramer Levin Naftalis & Frankel LLP, of New York, New
York.
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Michael A. O’Shea, Akin Gump Strauss Hauer & Feld, LLP, of Washington, DC,
for amicus curiae International Intellectual Property Institute. With him on the brief was
Shari F. Esfahani.
W. Murray Spruill, Alston & Bird LLP, of Raleigh, North Carolina, for amicus
curiae Biotechnology Industry Organization.
Richard A. Samp, Washington Legal Foundation, of Washington, DC, for amicus
curiae Washington Legal Foundation.
Richard L. Rainey, Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., of
Washington, DC, for amicus curiae Pharmaceutical Research and Manufacturers of
America. With him on the brief was Darrel C. Karl.
John F. Duffy, George Washington University Law School, of Washington, DC,
for amici curiae Law Professor John F. Duffy, et al.
Eric J. Lobenfeld, Hogan & Hartson L.L.P., of New York, New York, for amicus
curiae Congressman Darrell Issa.
Milton M. Oliver, Ware, Fressola, Van der Sluys & Adolphson LLP, of Monroe,
Connecticut, for amicus curiae Richard L. Edelson, M.D.
Appealed from: United States District Court for the Southern District of New York
Judge Sidney H. Stein
United States Court of Appeals for the Federal Circuit
04-1189, -1347, -1357
PURDUE PHARMA L.P.,
THE PURDUE FREDERICK COMPANY,
THE P.F. LABORATORIES, INC., and THE PURDUE PHARMA COMPANY,
Plaintiffs/Counterclaim Defendants-
Appellants,
and
EUROCELTIQUE S.A.,
Counterclaim Defendant,
v.
ENDO PHARMACEUTICALS INC.,
Defendant/Counterclaimant-
Cross Appellant,
and
ENDO PHARMACEUTICALS HOLDINGS INC.,
Defendant-Cross Appellant.
Before GAJARSA, Circuit Judge, PLAGER, Senior Circuit Judge, and LINN, Circuit
Judge.
ORDER
A combined petition for panel rehearing and rehearing en banc was filed by
Purdue Pharma L.P., The Purdue Frederick Company, The P.F. Laboratories, Inc., and
The Purdue Pharma Company (collectively, “Purdue”), and a response thereto was
invited by the court and filed by Endo Pharmaceuticals Inc. and Endo Pharmaceuticals
Holdings Inc. (collectively, “Endo”). Amicus curiae briefs in support of Purdue’s petition
were filed by the Biotechnology Industry Organization; Richard L. Edelson, M.D.; the
International Intellectual Property Institute; Congressman Darrell Issa; Law Professors
John F. Duffy, et al.; the Pharmaceutical Research and Manufacturers of America; and
the Washington Legal Foundation. Thereafter, these filings were referred to the merits
panel that heard the appeal.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The petition for panel rehearing is granted.
(2) The previous opinion of the court in this appeal, issued on June 7, 2005,
and reported at 410 F.3d 690, is withdrawn. The new opinion accompanies this order.
(3) The petition for rehearing en banc is moot.
FOR THE COURT
___FEB-1 2006___ _s/Jan Horbaly__
Date Jan Horbaly
Clerk
04-1189, -1347, -1357 2