Indianapolis, Indiana – Patent infringement lawyers for Eli Lilly and Company of Indianapolis, IN, filed a complaint alleging Actavis Totowa LLC of Little Falls, NJ, and Actavis Elizabeth LLC of Elizabeth, NJ, are infringing Patent No. 5,464,826, titled METHOD OF TREATING TUMORS IN MAMMALS WITH 2′,2′-DIFLUORONUCLEOSIDES and issued by the U.S. Patent Office.
The ‘826 patent covers the drug marketed under the name GEMZAR(R) for the treatment of abnormal masses of tissue known as neoplasms. The complaint states that, in a separate lawsuit, the ‘826 patent was found invalid on grounds of obviousness-type double patenting, but that Lilly has appealed to the Federal Circuit and believes the ruling will be reversed. Lilly also holds approved New Drug Application No. 20-509 for the use of GEMZAR(R) as a treatment for certain types of cancer.
The defendant allegedly filed a Abbreviated New Drug Application in the hopes of marketing a generic version of GEMZAR(R) before the expiration date of the ‘826 patent. Accordingly, in this case, Lilly requests that the court declare the ‘826 patent is valid and enforceable and that the defendant’s threatened acts would infringe the patent.
Practice Tip: There are two types of double patenting: one called “statutory” double patenting refers to the prohibition against an applicant seeking two patents literally claiming the same invention, while the second type is called “obviousness” or “non-statutory” double patent and refers to a situation where a patent applicant files two applications claiming inventions which are patently indistinct from each other and which may only issue if the applicant disclaims any “extra” term of the second patent.
Further information about this case is as follows:
Filed: June 30, 2010 as 1:2010cv00836 Updated: July 1, 2010 02:25:12
Plaintiff: ELI LILLY AND COMPANY
Defendants: ACTAVIS ELIZABETH LLC and ACTAVIS TOTOWA LLC
Presiding Judge:Tanya Walton Pratt
Referring Judge:Tim A. Baker
Cause Of Action: Patent Infringement