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Chapter: 20.2

Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2016 U.S. Dist. LEXIS 28969 (N.D. Cal. March 7, 2016)
(holding the common interest protected communications between two companies deciding whether to settle a patent infringement, "Endo points out that courts have applied the common interest doctrine to protect communications between patent holders and exclusive licensees with respect to proceedings before the PTO because both entities share a common legal interest: the issuance and enforceability of the underlying patents. See, e.g., In re Regents of Univ. of California, 101 F.3d 1386, 1390 (Fed. Cir. 1996) ('we conclude that the legal interest between Lilly and UC was substantially identical because of the potentially and ultimately exclusive nature of the Lilly -- UC license agreement. Both parties had the same interest in obtaining strong and enforceable patents.'). But that is simply not the case here, where Endo and Teikoku's common interest was keeping other drugs off the market, whether the justification was for commercial or public safety reasons."; "The aim of the Citizen Petition was not to seek or maintain approval of Lidoderm, but instead to convince the FDA to maintain higher standards and keep competing generics off the market until they met those higher standards. That is a common commercial interest of Endo and Teikoku. The fact that Endo was making a legal argument among others in its Petition (that the FDA should adhere to its own regulations for bioequivalence) does not turn Endo and Teikoku's joint commercial interest into a legal one."; "Where the relief Endo sought at the FDA was not to protect its legal interests in its ability to sell Lidoderm (or Teikoku's legal interests in protecting the strength of its patents covering Lidoderm), but simply to have the FDA adhere to its own regulations in order to keep other drugs off the market, defendants' interests were commercial.")

Case Date Jurisidction State Cite Checked
2016-03-07 Federal CA
Comment:

key case