Abbott Labs. v. Apotex, Inc., __ F.Supp.2d __, 2006 WL 2884317 (N.D. Ill. Oct. 6, 2006) (Posner, C.J.).

Judge Posner, sitting on the Northern District by designation, extended the injunction he issued after a bench trial, No. 97 C 7515 (N.D. Ill. Mar. 31, 2004), aff’d by 122 Fed. Appx. 511 (Fed. Cir. 2005), to include Nu-Pharm, defendant Apotex’s "stalking horse" from making, using or sell the patented drug, divalproex sodium.  In 2004, the Court enjoined Apotex from making, using or selling the patented drug.  At some point thereafter, Apotex slightly changed its manufacturing process and had an entity it formerly owned, and apparently still controlled, file an Abbreviated New Drug Application ("ANDA") with the Food and Drug Administration ("FDA").  Neither Apotex nor Nu-Pharm tested the drug to determine whether the altered manufacturing process resulted in a drug with sufficiently different characteristics to avoid plaintiff’s claims.Continue Reading Do Your Homework Before Using a Design Around to Avoid an Injunction