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Judge Robinson: Motion to dismiss defendant’s counterclaims in due to covenant not to sue GRANTED

In Somaxon Pharms., Inc. v. Par Pharm., Inc., C.A. No. 11-107-SLR (D. Del. July 28, 2011), defendant asserted counterclaims seeking declaratory judgment of invalidity and non-infringement of the patent-in-suit and six unasserted patents covering the drug at issue. Id. at 3. Plaintiffs provided defendant with a covenant not to sue on the six unasserted patents and requested defendant to dismiss its counterclaims as to the unasserted patents. Id. Judge Robinson granted plaintiffs’ motion to dismiss. “[T]he covenants not to sue address the Unasserted Patents in their entirety. There is no case or controversy regarding those patents because the covenant not to sue removes the original subject matter jurisdiction of the court.” Id. at 5.


Somaxon Pharms., Inc. v. Par Pharm., Inc., C.A. No. 11-107-SLR (D. Del. July 28, 2011)

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