Judge Keeps Alive Dey's Fight For Xopenex ANDA

Law360, New York (February 2, 2009, 12:00 AM EST) -- A federal judge has refused to dismiss Dey LP's declaratory action suit against Sepracor Inc. over Xopenex after finding that a justiciable controversy remained in the case despite Sepracor's promise not to sue the generics manufacturer for infringement of the asthma drug patent.

Judge Joseph J. Farnan Jr. of the U.S. District Court for the District of Delaware ruled Friday that the suit should continue despite the covenant because the case more closely resembled the U.S. Court of Appeals for the Federal Circuit's Caraco decision than...
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