Damages Claim Goes Forward in Prilosec Patent Infringement Litigation

In an August 5, 2013 ruling, Judge Denise Cote denied defendant Andrx Pharmaceuticals, Inc.'s summary judgment motion in plaintiff Astra Aktiebolag's long-running patent infringement action over a generic version of Prilosec.  The action began with Andrx filing of an ANDA, before it had actually made any of the allegedly infringing drug.  During the course of the lengthy litigation, Andrx manufactured $41 million worth of "validation batches" of the drug.  After the Court found infringement, Astra supplemented its complaint to allege damages arising from this manufacture.  Andrx moved for summary judgment, contending it never sold any infringing goods, and its mere manufacture of goods without sale could not constitute "commercial manufacture" that could give rise to money damages under the Hatch-Waxman Act.  Judge Cote rejected the argument, ruling that "commercial manufacture" did not mean "commercial marketing" as Andrx asserted, and that if Congress had meant "commercial marketing," it would have used that term.  The Court also rejected Andrx's argument that the earlier entry of a final injunction prohibiting sale of the goods precluded an award of damages for the manufacture of those goods.  Judge Cote ruled that the fact that Andrx was "enjoined from infringing patents going forward does not render any damages award for past infringement 'double recovery,'" and allowed the damages claim to proceed.