Biotech Values

[mouton29]

<<I have no knowledge of the WPI/A relationship but from what little I do know is that WPI was acting as a retail distributor for Amphastar. I don't believe Watson's name is on any FDA documents because I never saw any mention of Watson when Amphastar was suing the FDA on a regular basis.

Their relationship doesn't seem to be the same as the intertwined Sandoz/Momenta relationship.>>

The relationship was summarized in their press release back in September, this was quoted by the district court in its decision in January dismissing the arguments that jurisdiction was lacking. According to the press release,

Pursuant to the terms of the parties' exclusive Distribution Agreement, Amphastar will supply Enoxaparin Sodium Injection to Watson, which will market, sell and distribute the product to the U.S. retail pharmacy channel. Amphastar will receive between 50 and 55 percent of Watson's gross profits on product sales, depending on the number of competitors in the market. Amphastar will market, sell and distribute the product to all other channels.

http://ir.watson.com/phoenix.zhtml?c=65778&p=irol-newsArticle&ID=1608121&highlight=

Merely selling a patented product is infringement, as is inducing another to infringe. As would be expected, Momenta alleges both that the sales infringe and that Watson is inducing infringement, which seems to follow given the exclusive distribution arragnement.

5 U.S.C. 271 Infringement of patent.

(a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.

(b) Whoever actively induces infringement of a patent shall be liable as an infringer.

www.uspto.gov/web/offices/pac/mpep/documents/appxl_35_U_S_C_271.htm

I believe that as a matter of general tort law, multiple tortfeasors acting in concert are jointly liable. E.g., in CONOPCO, INC. v. MAY DEPT. STORES CO, the court stated:

The Court similarly rejects Kessler's assertions with respect to the Court's assessment of damages. The Court found that all of the defendants willfully and intentionally infringed the VASELINE and INTENSIVE CARE trademarks, and assessed treble damages against the infringing defendants. As a joint tortfeasor, Kessler is jointly and severally liable to plaintiff for all damages suffered as a result of defendants' infringing acts. See Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1023 (9th Cir. 1985), cert. denied, 474 U.S. 1059 (1986).

http://mo.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19920526_0000044.EMO.htm/qx