Daiichi Pharmaceutical Co., Ltd., et al. v. Apotex, Inc. et al.
Economic Advice in Litigation
The Situation
United States Patent No. 5,401,741 discloses a method of treating certain ear infections with Ofloxacin Otic Solution, 0.3%, sold by Daiichi under the brand name FLOXIN® Otic. Apotex contended that the patent was invalid due to obviousness and other reasons and announced its intention to introduce a generic equivalent before the '741 patent expired.
NERA's Role
Retained by Daiichi, NERA analyzed FLOXIN® Otic's performance in the marketplace and concluded that the invention described in the patent had been a commercial success. In November 2005, NERA Senior Vice President Dr. Phillip Beutel testified on Daiichi's behalf and explained NERA's research and analysis to the court.
The Result
On 2 August 2006, Senior District Judge William Bassler of the US District Court for the District of New Jersey ruled that the '741 patent is not invalid, that FLOXIN® Otic was a commercial success, and that Apotex would infringe the patent if it introduced a generic version of FLOXIN® Otic prior to the patent's expiration. Citing NERA's analyses, Judge Bassler wrote: "Secondary considerations further support the Court's finding that the '741 patent is non-obvious....The evidence shows that Daiichi's FLOXIN® Otic product was commercially successful."
