Published on:

Judge Sleet: Motion for Judgment on the Pleadings declaring patent in suit unenforceable GRANTED

In a recent ANDA case Judge Sleet granted defendant Anchen’s motion for judgment on the pleadings of Count V of its counterclaims seeking a declaratory judgment that Plaintiffs’ 083 patent was unenforceable. Bone Care International LLC v. Anchen Pharmaceuticals, Inc., C.A. No. 09-285-GMS (consolidated) (D. Del. Oct. 31, 2011). In support of its motion Anchen argued that “Bone Care’s action of disclaiming and requesting the delisting of the ‘083 Patent from the Orange Book renders this patent unenforceable as a matter of law, as such action statutorily disclaims all patent claims.” Id. at 1. Plaintiffs responded that the court lacked subject matter jurisdiction to decide Anchen’s declaratory judgment counterclaims because Bone Care statutorily disclaimed the patent and because Genzyme covented not to sue Anchen for infringement of the patent. Id. at 2. Judge Sleet determined that under Rule 54(b) judgment on the pleadings was appropriate because Plaintiff’s statutorily disclaimed the patent and provided no defense to this statutory disclaimer, because “Count V is a cognizable/individual counterclaim for discrete relief as to the ‘083 patent”, and because “there is nothing indicating that granting Anchen’s motion will result in a waste of judicial resources or impede judicial efficiency.” Id. at 3.


Bone Care International LLC v. Anchen Pharmaceuticals, Inc., C.A. No. 09-285-GMS (consolidated) (D. Del. Oc…

Contact Information