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Advertising Alert: Second Circuit Clarifies Its False Advertising Jurisprudence
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Judge Martini of the United States District Court, District of New Jersey denied Graceway's motion for a temporary restraining order against Nycomed for alleged infringement of U.S. Patent No. 7,655,672 that relates to imiquimod cream. The Court denied the motion, refusing to restrain the sale of Nycomed's generic imiquimod cream, on several grounds, stating, inter alia, that "[t]he public has a substantial interest in seeing that litigation like this is not brought again." On February 23, 2010, Graceway Pharmaceuticals, LLC and 3M Innovative properties Co. had filed an infringement action against Nycomed U.S. Inc., Perrigo Company, and Perrigo Israel Pharmaceuticals Ltd. alleging patent infringement. Perrigo did not take part in these preliminary proceedings. Graceway's patent does not cover Graceway's own imiquimod cream product, Aldara, which is the largest selling topical preparation in the United States. The Court found that Graceway had delayed in seeking relief and had not shown that Nycomed's validity challenge lacked substantial merit. The Court also found that the balance of hardships and public interests favored Nycomed. The Kramer Levin team that represented Nycomed included Intellectual Property partner Donald L. Rhoads and associates Marcus A. Colucci, Benu Mehra, Mary W. Richardson and Geoffrey G. Hu.
IP Law 360 and AmLaw Litigation Daily reported on the win.