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Citing Therasense, Judge Awards Attorneys’ Fees in Viagra Case

October 24, 2011

As appeared in Thomson Reuters’ “Alison Frankel’s ON THE CASE” Column

A judge in the Pfizer v. Teva Pharmaceuticals patent case awarded attorney fees to Pfizer. According to Kaye Scholer Partner Aaron Stiefel, the ruling sends a message about the consequences of asserting an unfounded inequitable conduct claim.

“This should have something of a chilling effect,” he said.

Referring to the exception for egregious misconduct, in the Therasense case, apparently relied upon by the opposing party Teva Pharmaceuticals, Stiefel added, “You can’t just say, ‘We’re within the exception and we have a right to litigate this.’”

Stiefel explained that such a broad interpretation of the Therasense exception would have undermined the Federal Circuit’s objective of curtailing dubious misconduct allegations.

As to whether he is worried about a Federal Circuit review of the award, Stiefel concluded, “Reading Therasense, you would think the Federal Circuit would appreciate [the judge’s] decision.”

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