Full title: Eli Lilly And Company and Reliant Pharmaceuticals, LLC, Plaintiffs, v…

Court: United States District Court, S.D. Indiana, Indianapolis Division

Date published: Oct 12, 2001


In this action for patent infringement, plaintiffs Eli Lilly and Company and Reliant Pharmaceuticals, LLC have sued defendant Zenith Goldline Pharmaceuticals, Inc. for infringing U.S. Patent No. 4,375,547. The ‘547 patent claims a chemical compound called nizatidine, which is the active agent in plaintiffs’ anti-secretory anti-ulcer drug, AXID. Infringement is conceded. The two contested issues are (a) whether the ‘547 patent is invalid for obviousness, and if not, (b) whether Zenith has willfully infringed the ‘547 patent to make this an “exceptional case” in which attorneys’ fees should be awarded to plaintiffs under 35 U.S.C. § 285. On both issues, the case is strikingly similar to Yamanouchi Pharmaceutical Co. v. Danbury Pharmacal, Inc., 231 F.3d 1339 (Fed. Cir. 2000), in which the Federal Circuit affirmed findings of validity and willfulness regarding one of the three other patented drugs of the same class, called “H2 receptor antagonists.”



For the reasons detailed in this entry, the court finds that U.S. Patent No. 4,375,547 is not invalid as obvious under 35 U.S.C. § 103(a). The court further finds that Zenith’s act of infringement was willful, made without exercising due care and that this case is an exceptional case under 35 U.S.C. § 285. The court postponed taking evidence on the amount of any fee award until it was determined whether a fee award would be appropriate. Unless the parties agree or the court later orders otherwise, Lilly shall submit a detailed written fee petition no later than November 30, 2001. (Plaintiff Reliant, which voluntarily joined in this suit earlier this year after signing a license agreement with Lilly, is not entitled to its fee award.) Zenith shall submit any response no later than January 15, 2002. Lilly may file any reply no later than January 31, 2002. The court will schedule an evidentiary hearing or oral argument on written request, but will otherwise rule based on the written submissions.

So ordered.

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