Via SCOTUSblog, Pfizer recently filed a supplemental brief in opposition to Apotex’s petition for certiorari in Apotex v. Pfizer, suggesting that the case is moot. In its cert petition, Apotex asked the Supreme Court decide whether the listing of patent information in the Orange Book creates a justiciable controversy sufficient to form the basis for a declaratory judgment action for noninfringement or invalidity. Apotex does not agree that the case is moot, and therefore it has not withdrawn its petition.
According to Pfizer’s brief, the case is moot for two reasons: (1) Pfizer granted an unconditional covenant not to sue Apotex on the subject patent (U.S. Patent No. 5,248,699); and (2) Teva began marketing its generic Zoloft, thereby triggering the 180-day exclusivity period that Apotex sought to trigger with a hypothetical court judgment in its favor. Pfizer’s brief states that Apotex did not explain to Pfizer why there are still any issues for the Court to decide, though Apotex likely will provide that explanation soon, in a supplemental brief in support of its petition.
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