Typically, final judgment is the end of the road for a patent case. It's right there in the name. Sometimes, however, it is just a further maneuver in a forever war which the parties have little hope of resolving in their lifetimes.
There are, of course, only limited legal avenues for keeping the fires burning after final judgment. Today's case (oddly, the same as yesterday's case) deals with contempt.
As we discussed yesterday, BioDelivery Sciences International, Inc. v. Alvogen Pb Research & Development LLC, C.A. No. 18-1395-CFC-CJB (D. Del.) had proceeded to judgment years ago, with the plaintiff generally prevailing.
Like most ANDA cases, the judgment contained a clause enjoining the defendant from making/selling/using the "ANDA Products" until after the expiration of the infringed patents. D.I. 308.
Years later, the defendant filed a new ANDA based on the same listed drug, apparently reformulated to design around the relevant patents. The Plaintiff, in addition to filing a new ANDA case against this ANDA, brought a motion to enforce the judgment.
Judge Connolly denied the motion, finding that it was procedureally improper:
I need not decide whether the products covered by ANDA No. 220582 are an "ANDA Product" covered by paragraph 7's injunction because I agree that the motion is procedurally improper, and I will deny it for that reason . . .
I agree that to the extent BDSI seeks to enforce the injunction in paragraph 7, it must do so by way of a contempt motion. An injunction is "an equitable decree compelling obedience under the threat of contempt[.]" And thus "injunctions are enforced through the district court's civil contempt power." Accordingly, "[i]f a party contends that another party is violating an injunction, the aggrieved party should move the court for an order to show cause why the other party should not be held in civil contempt."
D.I. 423 at 9-10 (internal citations omitted).
It's not clear from the opinion whether the door is technically open for a further motion for contempt. However, given that the Court took the parties to task for the "waste of judicial resources" and "obstreperous behavior by both sides to a degree I have rarely experienced as a judge" I would not be at all surprised if the plaintiff just let it lie and continued with the new case. Only time shall tell.
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