Panel Upholds $17M Attorney Fee Award, Cites Bad-Faith Patent Litigation by Drug Companies

Law.com - Panel Upholds $17M Attorney Fee Award, Cites Bad-Faith Patent Litigation by Drug Companies, Dec. 9, 2008.

The generic drug companies had sought approval to produce generic versions of an anti-diabetic drug for which Takeda held the patent. The two companies made certifications that the Takeda patent was invalid for obviousness.

But at trial, both companies changed the focus of their invalidity arguments from what they had filed in their certifications. After an extensive bench trial, the court held that the patent was nonobvious and enforceable.

Takeda moved for an award of attorney fees under a section of the law that permits that award to prevailing parties in "exceptional cases." The district court agreed with Takeda that both companies lacked a good faith basis for their certification filings and had engaged in litigation misconduct.