Judge Robinson: Motion to Dismiss DENIED in case alleging that a prior patent litigation was sham litigation
Judge Robinson recently considered a motion to dismiss a complaint in an antitrust action that stemmed from a patent litigation that was voluntarily dismissed in 2004. Rochester Drug Co-operative v. Braintree Laboratories, C.A. No. 07-142-SLR (D. Del. May 18, 2010). Plaintiffs filed suit alleging that the prior patent litigation brought by defendant was a “sham litigation” “designed to delay FDA’s approval of [a generic drug] and to improperly maintain monopoly power with respect to its pioneer drug.” Id. at 2. Defendant subsequently filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). In order to resolve defendant’s 12(b)(6) motion, Judge Robinson analyzed whether plaintiffs adequately pled the “sham litigation” exception to Noerr-Pennington immunity that typically protects a patent owner asserting its rights from antitrust liability. Id. at 10-11. First, Judge Robinson determined that plaintiffs adequately pled antitrust injury. Although defendant argued that plaintiffs suffered no direct injury, Judge Robinson determined that plaintiffs’ claim was based upon an overall scheme. “It is sufficient, therefore, for plaintiffs to allege injuries that occurred as a result of the entire scheme, rather than any particular component therein.” Id. at 13. Judge Robinson next determined that the overall scheme plaintiffs’ alleged sufficiently pled that defendant attempted to forestall competition, including filing what plaintiffs describe as the “objectively baseless” litigation. Id. at 14-15. Notably, Judge Robinson declined to accept defendant’s argument that she should find that the previous litigation was not a sham as a matter of law, due to the court’s previous finding that Noerr-Pennington barred a counterclaim in the previous litigation. Id. at 18. Judge Robinson noted that the court made that determination based upon the record before it at the time, and that the plaintiffs in this action were not represented in the previous litigation. Id. at 18-19.