ALTANA PHARMA AG v. TEVA PHARMACEUTICALS USA INC
2:04-cv-02355
D.N.J.May 14, 2013Background
- United States District Court for the District of New Jersey; Altana Pharma AG and Wyeth sue Teva over pantoprazole patents and damages theories.
- Teva moves to exclude Dr. Christopher Vellturo's damages opinions (price erosion, lost profits, lost royalties, reasonable royalties) and Dr. Jeffrey Leitzinger's opinions on Sun liability for lost profits.
- Vellturo’s damages framework includes lost profits on lost sales, price erosion on retained sales, and a reasonable royalty for expansion and overall infringing sales; alternative total damages are proposed.
- Leitzinger contends that Sun's liability for lost profits should reflect that other infringers (and Wyeth’s own generic) were already in the market; he critiques Vellturo’s calculations.
- Court denies Teva's motion in part and grants in part: price erosion and reasonable royalties opinions by Vellturo are allowed; Nycomed lost profits on lost sales are excluded; Leitzinger may opine on Sun’s liability only to the extent tied to attribution to Wyeth’s own generic rather than Sun’s infringing product.
- Order issued May 2013.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Vellturo's price erosion opinion | Plaintiffs. | Teva. | Not excluded; admissible. |
| Admissibility of Vellturo's reasonable royalty opinion | Plaintiffs. | Teva. | Not excluded; admissible. |
| Nycomed lost profits on lost sales | Nycomed seeks lost profits. | Court previously barred lost profits; focus on royalties. | Lost profits on lost sales excluded; lost royalties potentially admissible. |
| Leitzinger's testimony on Sun's liability for lost profits | Sun liable for lost profits. | Sun's liability contested; apportionment allowed. | Teva's motion granted to the extent opposing Sun’s liability; Sun may attribute some lost sales to Wyeth's generic. |
Key Cases Cited
- Radio Steel & Mfg. Co. v. MTD Prods., Inc., 788 F.2d 1554 (Fed. Cir. 1986) (reasonable royalty framework at time of infringement)
- Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116 (S.D.N.Y. 1970) (15 factors for determining reasonable royalty; framework endorsed)
- LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51 (Fed. Cir. 2012) (Georgia-Pacific factors sanctioned in modern practice)
- Oddi v. Ford Motor Co., 234 F.3d 136 (3d Cir. 2000) (gatekeeping and reliability standard for expert testimony)
- ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254 (3d Cir. 2012) (reliability and fit under Rule 702; data–driven analysis)
- Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994) (liberal qualification standard for experts; Daubert gatekeeping)
- Mars, Inc. v. Coin Acceptors, Inc., 527 F.3d 1359 (Fed. Cir. 2008) (royalty framework may involve infringer’s profit; possible losses)