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29 June 2017Americas

Pfizer and direct purchasers fight over summary judgment

Pfizer and a class of direct purchasers have each filed motions for summary judgment at a Virginia district court centring on antitrust allegations made against Pfizer.

Both parties filed motions on Tuesday, July 27, at the US District Court for the Eastern District of Virginia, Norfolk Division.

According to the direct purchasers, Pfizer had procured US patent number RE44,048 covering Celebrex (celecoxib) by misleading the US Patent and Trademark Office (USPTO).

Celebrex is used to treat pain or inflammation caused by conditions such as arthritis and menstrual pain.

The ‘048 patent is a reissuance patent of US patent number 5,760,068, which had previously been invalidated by the US Court of Appeals for the Federal Circuit.

Pfizer had sued Teva to stop the company bringing a generic version of Celebrex to market but, in 2007, the Federal Circuit held the ‘068 patent was obvious over another patent.

In 2008, Pfizer sought reissuance of the ‘068 patent at the USPTO, explaining that it had “sought to correct the ‘technical defect’ identified by the Federal Circuit”.

The following year, the USPTO rejected Pfizer’s application and in March 2013, the ‘048 patent was issued.

In its application for summary judgment, Pfizer argued that the court should grant the judgment as it did not commit fraud in order to be granted the ‘048 patent.

The company said that no reasonable jury could find that Pfizer had misrepresented or omitted any material fact, or that it intended to deceive the USPTO.

Pfizer added: “Plaintiffs allege that Pfizer told several lies to the USPTO during prosecution of the ‘048 patent.

“But nowhere in the patent’s file history—the public record of Pfizer’s statements and arguments—do plaintiffs identify even one express, provably false representation of material fact.”

The direct purchasers claimed that Pfizer had made misrepresentations and omissions with the intent to deceive the USPTO, and asked for partial summary judgment against Pfizer.

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