A US District Court denies a motion to dismiss an antitrust counterclaim in a patent infringement action in the wake of the defendant having filed an ANDA with the FDA (Shionogi Pharma / Mylan)

ANDA Automatic Stay of FDA Approval Does Not Defeat Standing in Sham Litigation Antitrust Counterclaim* The District of Delaware recently denied a motion to dismiss an antitrust counterclaim in a patent infringement action in the wake of defendant Mylan, Inc. ("Mylan") having filed an Abbreviated New Drug Application ("ANDA") with the Federal Drug Administration ("FDA"). Shionogi Pharma, Inc. v. Mylan, Inc., United States District Court, District of Delaware, Civil Action No. 10-1077, August 31, 2011. The decision raises a host of interesting and provocative issues relating to the "sham" exception for petitioning activity immunity under the Noerr doctrine. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127 (1961) ("Noerr") and Professional Real Estate

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  • Sheppard Mullin (Los Angeles)

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Jr. Don T. Hibner, A US District Court denies a motion to dismiss an antitrust counterclaim in a patent infringement action in the wake of the defendant having filed an ANDA with the FDA (Shionogi Pharma / Mylan), 31 August 2011, e-Competitions Bulletin US Private Enforcement, Art. N° 66583

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