Case 1:18-cv-00303-RGA Document 19 Filed 04/30/18 Page 1 of 3 PageID #: 583
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`BAXTER HEALTHCARE
`CORPORATION,
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`HOSPIRA, INC. and ORION CORP.,
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`v.
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`Plaintiff,
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`Defendants.
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`C.A. No. 18-303-RGA
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`DEFENDANTS’ MOTION FOR 14-DAY EXTENSION OF TIME TO FILE THEIR
`RESPONSE TO PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS
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`Defendants Hospira, Inc. and Orion Corp. (collectively, “Defendants”) respectfully move
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`for a 14-day extension of time to file their response to the April 24, 2018, motion for judgment on
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`the pleadings (D.I. 16-17) filed by Plaintiff Baxter Healthcare Corporation (“Baxter”).
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`Defendants’ response is currently due on May 8. If granted, the extension would move the deadline
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`for Defendants’ response to May 22. This is Defendants’ first request for an extension for their
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`response brief.
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`Pursuant to District of Delaware Local Rule 7.1.1, counsel for Defendants conferred with
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`counsel for Baxter regarding the extension request. Baxter opposes the extension.
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`Good cause exists for Defendants’ request for extension, as set forth below. See Federal
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`Rule of Civil Procedure 6(b)(1).
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`1.
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`This suit arises out of Baxter’s submission of an Abbreviated New Drug
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`Application seeking approval for a ready-to-use dexmedetomidine product. Baxter seeks approval
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`prior to expiry of the Orange Book-listed patents for Hospira’s dexmedetomidine product,
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`Precedex®. (E.g., D.I. 1 at 11-13.) Baxter filed this declaratory judgment suit on February 22,
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`2018. (Id.)
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`Case 1:18-cv-00303-RGA Document 19 Filed 04/30/18 Page 2 of 3 PageID #: 584
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`2.
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`Baxter contends this suit must be expedited, and apparently no extensions of any
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`kind be granted, because Baxter needs resolution of this suit to launch its dexmedetomidine
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`product. (E.g., D.I. 18 at 1-3.) This contention fails for several reasons.
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`3.
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`First, any urgency that Baxter now feels is a product of its own making. For over
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`one-and-a-half years, since July 22, 2016, Baxter was statutorily permitted to bring this declaratory
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`judgment action, but elected not to do so. See 35 U.S.C. § 355(j)(5)(C) (permitting ANDA
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`applicant to file declaratory judgment suit if patent holder does not bring suit within forty-five
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`days of receiving notice of ANDA seeking approval prior to patent expiry). Defendants should
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`not be forced to make up time that Baxter itself wasted.
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`4.
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`Second, a modest two-week extension is appropriate to allow Defendants to
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`adequately respond to Baxter’s dispositive motion. Baxter’s motion seeks to dispose of this entire
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`case on the pleadings, raising issues regarding the requirements for induced infringement under
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`the Hatch-Waxman framework and appropriate material for consideration with respect to a motion
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`for judgment on the pleadings. (See, e.g., D.I. 17 at 11-18.) It contains five Exhibits totaling over
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`200 pages, including a Declaration from Baxter’s Director of Marketing that Baxter will not even
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`permit Defendants’ in-house counsel to view. (D.I. 17 at Ex. 5.) Given the motion’s volume and
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`import, it is unsurprising that, after Defendants filed their Answer and Counterclaim, Baxter took
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`five weeks to respond to the Counterclaim and file its motion. (See D.I. 10, 16.) Defendants
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`should be permitted at least a commensurate four weeks to prepare its response, rather than the
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`default two weeks generally provided under the Local Rules for responses to motions.
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`5.
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`Third, it is irrelevant that Defendants have previously litigated the patents-in-suit
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`in other cases against other ANDA applicants. Defendants must respond to the specific arguments
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`2
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`Case 1:18-cv-00303-RGA Document 19 Filed 04/30/18 Page 3 of 3 PageID #: 585
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`Baxter raises in its motion for judgment on the pleadings, which have not been previously
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`adjudicated by a court.
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`6.
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`Finally, Defendants have already made clear that they do not assert against Baxter
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`the three patents forming the “regulatory conundrum” that Baxter claims is blocking its market
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`entry. (See D.I. 18 at 4.) This case, and Defendants’ response brief, will address Baxter’s
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`infringement of the ‘867 patent, which does not affect whether Baxter can receive final FDA
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`approval to launch its product.
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`WHEREFORE, Defendants respectfully request the entry of an order extending the time
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`by fourteen days, from May 8 to May 22, for them to submit their response to Baxter’s motion for
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`judgment on the pleadings.
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`Dated: April 30, 2018
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`Of Counsel:
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`Bradford P. Lyerla
`Sara T. Horton
`Yusuf Esat
`Ren-How Harn
`JENNER & BLOCK LLP
`353 N. Clark Street
`Chicago, IL 60654-3456
`Telephone: 312 222-9350
`Facsimile: 312 527-0484
`blyerla@jenner.com
`shorton@jenner.com
`yesat@jenner.com
`rharn@jenner.com
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`CONNOLLY GALLAGHER LLP
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`/s/ Ryan P. Newell
`Arthur G. Connolly, III (#2667)
`Ryan P. Newell (#4744)
`The Brandywine Building
`1000 West Street, Suite 1400
`Wilmington, DE 19801
`302) 757-7300
`aconnolly@connollygallagher.com
`rnewell@connollygallagher.com
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`Attorneys for Defendants
`Hospira, Inc. and Orion Corp.
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`3
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