MEMORANDUM ORDER
In these consolidated actions, see Ordеr, March 29, 2002, plaintiffs allege that defendants monopolized and attempted to monopolize the market for the gastric acid inhibiting drug Prilosec 7 (“Prilosec”) in violation of Section 2 of the Sherman Antitrust Act, and in so doing also violated the laws of 19 states and the District of Columbia. . Plaintiffs claims are largely premised on the allegation that defendants engaged in “sham” litigation in an attempt *222 to prevent generic competitors from entering the market.
By way of background, the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., specifies that aрproval by the Food and Drug Administration (“FDA”) is required before a company may market a new drug. To obtain such approval, the company must file a New Drug Application (“NDA”) with the FDA indicating, inter alia, that the drug is safe and effective. See 21 U.S.C. § 355. If the new drug is covered by one or more patents, that information must also be provided in the NDA, and, upon approval of the drug, the FDA fists any such patents in what is known as the “Orange Book.” See 21 U.S.C. § 355(b). If, after approval, the company obtains a new patent covering the same drug, it files a suрplement to the NDA, and the new patent is then added to the Orange Book. 21 U.S.C. § 355(c)(2).
When, following approval of a new drug, a. different applicant seeks approval of a generic version of the previously-apprоved drug, it must file an abbreviated new drug application (“ANDA”) certifying either that: (I) no patent for the previously-approved drug has been filed; (II) the patents for the previously-approved drug have expired; (III) the patents for the рreviously-approved drug will expire prior to the first date on which the generic drug will be marketed; or (IV) the patents for the previously-approved drug are invalid or will not be infringed by the generic version. See 21 U.S.C. § 355(j)(2)(A)(vii). Those fifing the fourth certificatiоn — known as a “Paragraph IV” certification — are required to notify the holders of the patents on the previously-approved drug,- who then have 45 days to initiate action against the generic applicant. See 21 U.S.C. §§ 355(j)(2)(B), 355(j)(5)(B)(iii). If a holder of thе previous patent then brings a patent infringement suit against the new applicant within this 45-day period, approval of the generic drug is automatically stayed for 30 months, unless the sued-upon patent expires and/or there is a final judiсial determination of non-infringement from which no appeal can be taken at an earlier date. See 21 U.S.C. § 355(j)(5)(B)(iii); 21 CFR § 314.107(e).
The net effect of these provisions is to create a “loophole” by which the manufacturer of the originally-approved drug, by obtaining new but related patents shortly before the original patent on the drug is due to expire and then (when the applicability of the new patents is effectively challenged through a Paragraph IV certificatiоn) initiating an infringement action against the generic-drug applicant, can delay approval of the 'generic drug for at least 30 months and thereby extend its monopoly substantially beyond the terms of the original patent. Needless to say, numerous manufacturers have sought to take advantage of this loophole and, in so doing, have drawn increasing criticism of their monopoly-extending actions that harm, not just generic-drug manufacturers, but also consumers and their rеpresentatives, such as plaintiffs here. But when Congress passes statutes as detailed as the food and drug laws, it inevitably creates loopholes that only Congress can close. As for the courts, they are largely limited to voiding obvious shams but are otherwise mostly powerless to cure the problem.
Accordingly, plaintiffs, in these consolidated actions, focus the allegations of their jointly-filed Amended Complaint on what they allege was a fraud and a sham. Spеcifically, they allege that the defendants, having legitimately obtained FDA approval of Prilosec in 1989 pursuant to a patent that was due to (and did) expire on October 5, 2001 (after receiving a 6-month pediatric exclusivity extensiоn pursuant to *223 21 U.S.C. § 355), caused to be listed in the Orange Book ten later-obtained patents that they knew did not actually proscribe generic versions of Prilosec but that would enable the defendants, after receiving the generic applicants’ Paragraph IV certifications, to initiate sham litigation against the generic manufacturers and thereby artificially preserve defendants’ monopoly of the market for Prilosec for at least an additional 30 months. See Amended Complaint §§ 65-69.
Aсcording to the Amended Complaint, the sham litigation consists of twelve patent infringement suits brought by the defendants against ten generic-drug applicants, alleging infringement of six of the ten later-filed patents. See. Amended Complaint ¶¶ 84-128. The Amended Complaint broadly alleges that these suits, which have been consolidated before the Honorable Barbara Jones, see In re Omeprazole Patent Litigation, No. MDL 1291(BJ), are baseless and brought for purposes of monopolization. The Amended Complaint further notеs that Judge Jones' has previously declared' invalid all asserted claims of two of the six’ patents here in issue, as well as parts of a third patent. Amended Complaint ¶¶ 104-105.
Against these allegations, defendants move to dismiss the Amended Complaint on the basis,
inter alia,
of the so-called
“Noerr-Pennington
doctrine.” As articulated in
Eastern RR. Presidents Conference v. Noerr Motor Freight, Inc.,
Noerr-Pennington
immunity is not, however, absolute. Among other things, it does not protect the bringing of “sham” litigation,
see California Motor Trans.,
In
Professional Real Estate Investors Inc v. Columbia Pictures Indus. Inc.
In this case, the determinations already reаched in the companion patent infringe
*224
ment litigation render it legally impossible for plaintiffs- to meet the first criterion. As both sides agree, this Court, even on a motion to dismiss, may take cognizance not only of those orders of Judge Jones expressly referenced in the Amended Complaint but also of her other orders and related public records in the case before her.
See, e.g., In re Buspirone Patent Litigation,
Although plaintiffs further seek to avoid the force of the
Noerr-Pennington
doctrine by alleging, in a conclusory fashion, that the defendants obtained the ten later-listed patents by defrauding the Patent Office, and, further, defrauded the FDA by misstating the scope of these patents,
see
Amended Complaint ¶¶ 67-74, 149, nothing in the complaint details the “who, what, when, where, and how” of the alleged frauds, as required by Fed.R.Civ.P. 9(b).
See Durabla Mfg. Co. v. Goodyear Tire & Rubber Co.,
*225
Plaintiffs seek still further to avoid the force of
Noerr-Pennington
immunity by noting that it does not apply to the act itself of submitting the ten later-filed patents for listing in the Orange Book, which plaintiffs allege was done for an anti-competitive purpose.
See In re Buspirone,
Finally, plaintiffs’ other attempts to allege anti-competitive conduct outside the scope of the Noerr-Pennington doctrine are irrelevant on their face. Thus, while the Amended Complaints allege that one of the defendants improperly entered into an agreement with а pharmaceutical and product development company, aai Pharma Inc., with the goal of developing, prosecuting, and listing in the Orange Book other related patents, the Amended Complaint also notes that thеse patents were never actually listed in the Orange Book. Amended Complaint ¶¶ 131, 133. Likewise, while the Amended Complaints allege that defendants agreed to market the drug Nexium, a competitor of Prilosec, Amended Complaint ¶¶ 134, 135, they nеver allege how this is anti-competitive.
The Court has considered plaintiffs’ other arguments in support of their federal claims and finds them similarly lacking in merit. As for plaintiffs’ state-law claims, the Court sees no adequate reason to retаin supplemental jurisdiction over them once the federal claims’ are dismissed.
See, e.g., United Mine Workers of America v. Gibbs,
Accordingly, defendants’ motion to dismiss is granted, the federal law claims are dismissed with prejudice, and the pendant state law claims are dismissed without prejudice. Clerk to enter judgment.
SO ORDERED.
Notes
. The bench trial of those claims having been completed, the matter is presently sub judice before Judge Jones.
. Nor is this, as plaintiffs contend, a case of “serial” sham litigation, where the merit of some of the claims can not immunize а party bringing a- coercive series of litigations. See
Primetime 24 Joint Venture v. National Broadcasting,
. Plaintiffs also seem to be alleging some sort of fraud or misconduct resulting from defendants' argument to the FDA regarding the *225 proper interpretation of the statute and regulations relating to Paragraph IV filing. Amended Complaint ¶¶ 70-72. However, a legal argument promoting a particular interpretation of a statute can not be the basis of a fraud claim.