Novo Nordisk is familiar to many as a National Public Radio sponsor but is familiar to Minneapolis-based Paddock Laboratories as a competitor in “pharmaceutical combinations” for the treatment of Type2 diabetes.
In fact, Paddock apparently submitted an abbreviated new drug application to the FDA (an “ANDA”) for generic repaglinide and, in connection with that, sent a note to Novo Nordisk suggesting that NN’s related patents were not going to stop it. Who would have thought that NN might sue Paddock in its hometown? Why, after NN did so, did Paddock think it could separately sue NN in Michigan for antitrust violations six weeks later?
Many if not all experienced civil litigators would have foreseen the significant risk of NN’s preemptive lawsuit in response to Paddock’s proverbial shot across the bow. Few would have predicted that U.S. District Court Judge Donovan Frank (D. Minn.) would countenance a later second separate concurrent federal lawsuit in Michigan between the same parties, filed six weeks after NN’s suit against Paddock. He didn’t.
This raises the next question, what were the formidable array of Paddock litigators thinking (headed by Daniel G. Brown of Wilson Sonsini out of New York)? Presumably Paddock initially hoped to negotiate a deal with Novo Nordisk without extremely costly patent litigation. As for the low likelihood gambit of Paddock’s second-filed suit, by bringing that action, by bringing an aggressive motion to dismiss NN’s declaratory judgment counterclaim, perhaps Paddock signals to NN: we wanted to avoid the blood-letting of litigation, but, once swords are drawn, we’re all in.