Actavis Plaintiff’s Burden to Show Unenforceability/Invalidity of Underlying Patent Between Scintilla and Preponderance

The court denied defendants’ motion to reconsider a prior order denying summary judgment that no Sherman Act violation occurred and determined what an RPSA plaintiff must show. “⁠[In the previous order,] I determined that plaintiffs in this antitrust action bear the burden of showing ‘some evidence’ of the patent’s invalidity and/or unenforceability and that the jury would then be charged with weighing that evidence in considering whether at the time of the reverse-payment the patent-holding antitrust defendants had concerns about the strength of the patent that led to the reverse-payment settlement. . . . To the extent anyone misinterprets ‘some evidence’ to mean a scintilla of evidence, that is not my intention. Plaintiffs’ burden falls between a scintilla and a preponderance of evidence, and it will be determined in conjunction with other factors that combine to establish causation in a particular case. . . . [Cases defining the term ‘substantial evidence’] are helpful here. I will borrow the description of the Supreme Court in Richardson v Perales, 402 U.S. 389 (1971): ‘plaintiffs must present such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ . . . Defendants’ position – that plaintiffs in this antitrust action must show by a preponderance of the evidence that [one of the defendants] would have won the ’529 litigation – shifts the burden of proof that existed in the underlying patent litigation.”

In re Lidoderm Antitrust Litigation, 3-14-md-02521 (CAND 2018-02-07, Order) (William H. Orrick, III)

2018-02-09T13:09:02+00:00February 9th, 2018|Antitrust, Docket Report|