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Case 3:21-cv-14447-KM Document 1 Filed 07/30/21 Page 1 of 50 PageID: 1
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`
`
`
`
`Guillermo C. Artiles
`Matthew A. Sklar
`Omar A. Bareentto
`MCCARTER & ENGLISH, LLP
`Four Gateway Center
`100 Mulberry Street
`Newark, NJ 07102
`Tel: (973) 622- 4444
`Fax: 973.624.7070
`gartiles@mccarter.com
`msklar@mccarter.com
`obareentto@mccarter.com
`
`Attorneys for Plaintiff
`Neurocrine Biosciences, Inc.
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`
`
`NEUROCRINE BIOSCIENCES, INC.
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`ZYDUS PHARMACEUTICALS (USA) INC.,
`ZYDUS WORLDWIDE DMCC, ZYDUS
`HEALTHCARE (USA) LLC and CADILA
`HEALTHCARE LIMITED
`
`
`Defendants.
`
`
`Civil Action No. ________
`
`
`
`
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Neurocrine Biosciences, Inc. (“Neurocrine”), by way of Complaint against Defendants
`
`Zydus Pharmaceuticals (USA) Inc. (“Zydus Pharmaceuticals”), Zydus Worldwide DMCC
`
`(“Zydus Worldwide”), Zydus Healthcare (USA) LLC (“Zydus Healthcare”) and Cadila Healthcare
`
`Limited d/b/a Zydus Cadila (“Zydus Cadila”) (collectively “Zydus” or “Defendants”), alleges as
`
`follows:
`
`1
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`

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`Case 3:21-cv-14447-KM Document 1 Filed 07/30/21 Page 2 of 50 PageID: 2
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`NATURE OF THE ACTION
`
`1.
`
`This is a civil action for patent infringement of U.S. Patent Nos. 10,065,952 (“the
`
`’952 patent”), 10,844,058 (“the ’058 patent”), 10,851,103 (“the ’103 patent”), 10,851,104 (“the
`
`’104 patent”), 10,857,137 (“the ’137 patent”), 10,857,148 (“the ’148 patent”), 10,874,648 (“the
`
`’648 patent”), 10,906,902 (“the ’902 patent”), 10,906,903 (“the ’903 patent”), 10,912,771 (“the
`
`’771 patent”), 10,919,892 (“the ’892 patent”), 10,940,141 (“the ’141 patent”) and 10,952,997 (“the
`
`’997 patent”) (collectively, “patents-in-suit”), arising under the United States patent laws, Title
`
`35 United States Code, § 100 et. seq., including 35 U.S.C. §§ 271 and 281. This action relates to
`
`Zydus’ filing of an Abbreviated New Drug Application (“ANDA”) No. 216137 under Section
`
`505(j) of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 355(j), seeking U.S. Food and
`
`Drug Administration (“FDA”) approval to manufacture, use, import, offer to sell and/or sell
`
`valbenazine capsules, 40 mg and 80 mg (“Zydus’ generic products”) before the expiration of the
`
`patents-in-suit.
`
`THE PARTIES
`
`2.
`
`Neurocrine is a corporation organized and existing under the laws of Delaware with
`
`its corporate headquarters at 12780 El Camino Real, San Diego, CA 92130.
`
`3.
`
`Neurocrine is engaged in the business of researching, developing and bringing to
`
`market innovative pharmaceutical products for the treatment of neurological, endocrine and
`
`psychiatric disorders.
`
`4.
`
`Upon information and belief, Zydus Pharmaceuticals is a corporation organized
`
`under the laws of New Jersey and its principal place of business is located at 73 Route 31 N.,
`
`Pennington, New Jersey 08534.
`
`2
`
`

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`
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`5.
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`Upon information and belief, Zydus Worldwide is a corporation organized under
`
`the laws of the United Arab Emirates and its principal place of business is located at Armada
`
`Tower 2, P2, Cluster P, 9 Floor, Office 908, Al Thanyah 5, Hadaeq Mohammed Bin Rashid, Dubai,
`
`United Arab Emirates.
`
`6.
`
`Upon information and belief, Zydus Healthcare is a company organized under the
`
`laws of the state of Delaware and its principal place of business is located at 73 Route 31 N.,
`
`Pennington, NJ, 08534-3601.
`
`7.
`
`Upon information and belief, Zydus Cadila is a corporation organized under the
`
`laws of the Republic of India and its principal place of business is located at Zydus Corporate Park,
`
`Scheme No. 63, Survey No. 536, Khoraj (Gandhinagar), Nr. Vaishnodevi Circle, S.G. Highway,
`
`Ahmedabad, Gandinagar GJ 382481 IN.
`
`8.
`
`Upon information and belief, Zydus Pharmaceuticals is a subsidiary of Zydus
`
`Cadila.
`
`9.
`
`Upon information and belief, Zydus Worldwide is a subsidiary of Zydus Cadila.
`
`10.
`
`Upon information and belief, Zydus Healthcare is a subsidiary of Zydus Cadila.
`
`JURISDICTION AND VENUE
`
`11.
`
`12.
`
`This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1338(a).
`
`Plaintiff believes this case belongs in Delaware but is concurrently filing a case in
`
`this district out of an abundance of caution.
`
`13.
`
`This Court has personal jurisdiction over Zydus Pharmaceuticals because, upon
`
`information and belief, Zydus Pharmaceuticals directly, or indirectly, develops, manufactures,
`
`markets and sells generic drugs throughout the United States and in this judicial district.
`
`3
`
`

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`14.
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`This Court has personal jurisdiction over Zydus Worldwide because, upon
`
`information and belief, Zydus Worldwide directly, or indirectly, develops, manufactures, markets
`
`and sells generic drugs throughout the United States and in this judicial district.
`
`15.
`
`Upon information and belief, Zydus Worldwide is the holder of ANDA No.
`
`216137.
`
`16.
`
`This Court has personal jurisdiction over Zydus Healthcare because, upon
`
`information and belief, Zydus Healthcare directly, or indirectly, develops, manufactures, markets
`
`and sells generic drugs throughout the United States and in this judicial district.
`
`17.
`
`This Court has personal jurisdiction over Zydus Cadila because, upon information
`
`and belief, Zydus Cadila directly, or indirectly, develops, manufactures, markets and sells generic
`
`drugs throughout the United States and in this judicial district.
`
`18.
`
`Upon information and belief, Zydus Pharmaceuticals, Zydus Worldwide, Zydus
`
`Healthcare and Zydus Cadila hold themselves out as a unitary entity and operate as a single
`
`integrated business with respect to the regulatory approval, manufacturing, marketing, sale and
`
`distribution of generic pharmaceutical products throughout the United States, including in this
`
`judicial district.
`
`19.
`
`Upon information and belief, Zydus Pharmaceuticals, Zydus Worldwide, Zydus
`
`Healthcare and Zydus Cadila have thus been, and continue to be, joint and prime actors in the
`
`drafting, submission, approval and maintenance of ANDA No. 216137.
`
`20.
`
`For these reasons and for other reasons that will be presented to the Court if
`
`jurisdiction is challenged, the Court has personal jurisdiction over Zydus.
`
`4
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`

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`21.
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`Venue is proper in this judicial district under 28 U.S.C. §§ 1391 and 1400(b),
`
`because Zydus Worldwide is incorporated in the United Arab Emirates and may be sued in any
`
`judicial district in the United States.
`
`22.
`
`Venue is proper in this judicial district under 28 U.S.C. §§ 1391 and 1400(b),
`
`because Zydus Pharmaceuticals is incorporated in the state of New Jersey.
`
`23.
`
`Venue is proper in this judicial district under 28 U.S.C. §§ 1391 and 1400(b),
`
`because, upon information and belief, Zydus Healthcare’s principal place of business is located in
`
`New Jersey.
`
`24.
`
`Venue is proper in this judicial district under 28 U.S.C. §§ 1391 and 1400(b),
`
`because Zydus Cadila is incorporated in the Republic of India and may be sued in any judicial
`
`district in the United States.
`
`FACTUAL BACKGROUND
`
`The NDA
`
`25.
`
`Neurocrine is the holder of New Drug Application (“NDA”) No. 209241 for
`
`INGREZZA® (valbenazine) Capsules in 40, 60, and 80 mg dosage forms (“INGREZZA®
`
`Capsules”).
`
`26.
`
`The FDA approved NDA No. 209241 on April 11, 2017.
`
`27.
`
`INGREZZA® Capsules are prescription drugs approved for the treatment of tardive
`
`dyskinesia. Valbenazine, which is present as the tosylate salt, is the active ingredient in
`
`INGREZZA® Capsules.
`
`28.
`
`Valbenazine Capsules are marketed in the United States under the trademark
`
`INGREZZA®.
`
`5
`
`

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`
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`The Patents-in-Suit
`
`29.
`
`The United States Patent and Trademark Office (“the PTO”) issued the ’952 patent
`
`on September 4, 2018, titled “Valbenazine Salts and Polymorphs Thereof.” A true and correct
`
`copy of the ’952 patent is attached as Exhibit A.
`
`30.
`
`Neurocrine owns the ’952 patent through assignment as recorded by the PTO at
`
`Reel 041075, Frame 0820 and Reel 042510, Frame 0992.
`
`31.
`
`32.
`
`The ’952 patent currently expires on October 28, 2036.
`
`The ’952 patent is listed in Approved Drug Products With Therapeutic Equivalence
`
`Evaluations (“the Orange Book”) in connection with NDA No. 209241 for INGREZZA® Capsules.
`
`33.
`
`The PTO issued the ’058 patent on November 24, 2020, titled “Valbenazine Salts
`
`and Polymorphs Thereof.” A true and correct copy of the ’058 patent is attached as Exhibit B.
`
`34.
`
`Neurocrine owns the ’058 patent through assignment as recorded by the PTO at
`
`Reel 052974, Frame 0121; Reel 052974, Frame 0549 and Reel 053995, Frame 0827.
`
`35.
`
`36.
`
`The ’058 patent currently expires on October 28, 2036.
`
`The ’058 patent is listed in the Orange Book in connection with NDA No. 209241
`
`for INGREZZA® Capsules.
`
`37.
`
`The PTO issued the ’103 patent on December 1, 2020, titled “Valbenazine Salts
`
`and Polymorphs Thereof.” A true and correct copy of the ’103 patent is attached as Exhibit C.
`
`38.
`
`Neurocrine owns the ’103 patent through assignment as recorded by the PTO at
`
`Reel 052974, Frame 0121; Reel 052974, Frame 0549 and Reel 053995, Frame 0827.
`
`39.
`
`40.
`
`The ’103 patent currently expires on October 28, 2036.
`
`The ’103 patent is listed in the Orange Book in connection with NDA No. 209241
`
`for INGREZZA® Capsules.
`
`6
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`

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`41.
`
`The PTO issued the ’104 patent on December 1, 2020, titled “Valbenazine Salts
`
`and Polymorphs Thereof.” A true and correct copy of the ’104 patent is attached as Exhibit D.
`
`42.
`
`Neurocrine owns the ’104 patent through assignment as recorded by the PTO at
`
`Reel 052974, Frame 0121; Reel 052974, Frame 0549 and Reel 053995, Frame 0827.
`
`43.
`
`44.
`
`The ’104 patent currently expires on October 28, 2036.
`
`The ’104 patent is listed the Orange Book in connection with NDA No. 209241 for
`
`INGREZZA® Capsules.
`
`45.
`
`The PTO issued the ’137 patent on December 8, 2020, titled “Methods for the
`
`Administration of Certain VMAT2 Inhibitors.” A true and correct copy of the ’137 patent is
`
`attached as Exhibit E.
`
`46.
`
`Neurocrine owns the ’137 patent through assignment as recorded by the PTO at
`
`Reel 052974, Frame 0888.
`
`47.
`
`48.
`
`The ’137 patent currently expires on October 10, 2037.
`
`The ’137 patent is listed in the Orange Book in connection with NDA No. 209241
`
`for INGREZZA® Capsules.
`
`49.
`
`The PTO issued the ’148 patent on December 8, 2020, titled “Methods for the
`
`Administration of Certain VMAT2 Inhibitors.” A true and correct copy of the ’148 patent is
`
`attached as Exhibit F.
`
`50.
`
`Neurocrine owns the ’148 patent through assignment as recorded by the PTO at
`
`Reel 053415, Frame 0436.
`
`51.
`
`52.
`
`The ’148 patent currently expires on October 10, 2037.
`
`The ’148 patent is listed in the Orange Book in connection with NDA No. 209241
`
`for INGREZZA® Capsules.
`
`7
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`

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`53.
`
`The PTO issued the ’648 patent on December 29, 2020, titled “Methods for the
`
`Administration of Certain VMAT2 Inhibitors.” A true and correct copy of the ’648 patent is
`
`attached as Exhibit G.
`
`54.
`
`Neurocrine owns the ’648 patent through assignment as recorded by the PTO at
`
`Reel 050397, Frame 0502 and Reel 050515, Frame 0577.
`
`55.
`
`56.
`
`The ’648 patent currently expires on October 10, 2037.
`
`The ’648 patent is listed in the Orange Book in connection with NDA No. 209241
`
`for INGREZZA® Capsules.
`
`57.
`
`The PTO issued the ’902 patent on February 2, 2021, titled “Synthetic Methods for
`
`Preparation
`
`of
`
`(S)-(2R,3R,11bR)-3-isobutyl-9,10-dimethoxy-2,3,4,6,7,11b-hexahydro-1H-
`
`pyrido[2,1-a]isoquinolin-2- 2-amino-3-methylbutanoate di(4-methylbenzenesulfonate).” A true
`
`and correct copy of the ’902 patent is attached as Exhibit H.
`
`58.
`
`Neurocrine owns the ’902 patent through assignment as recorded by the PTO at
`
`Reel 053426, Frame 0765; Reel 053426, Frame 0633; Reel 053440, Frame 0795 and Reel 053800,
`
`Frame 0270.
`
`59.
`
`60.
`
`The ’902 patent currently expires on December 22, 2036.
`
`The ’902 patent is listed in the Orange Book in connection with NDA No. 209241
`
`for INGREZZA® Capsules.
`
`61.
`
`The PTO issued the ’903 patent on February 2, 2021, titled “Synthetic Methods for
`
`Preparation
`
`of
`
`(S)-(2R,3R,11bR)-3-isobutyl-9,10-dimethoxy-2,3,4,6,7,11b-hexahydro-1H-
`
`pyrido[2,1 -a]isoquinolin-2-yl 2-amino-3-methylbutanoate di(4-methylbenzenesulfonate).” A
`
`true and correct copy of the ’903 patent is attached as Exhibit I.
`
`8
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`

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`62.
`
`Neurocrine owns the ’903 patent through assignment as recorded by the PTO at
`
`Reel 053426, Frame 0765; Reel 053426, Frame 0633; Reel 053440, Frame 0795 and Reel 053800,
`
`Frame 0270.
`
`63.
`
`64.
`
`The ’903 patent currently expires on December 22, 2036.
`
`The ’903 patent is listed in the Orange Book in connection with NDA No. 209241
`
`for INGREZZA® Capsules.
`
`65.
`
`The PTO issued the ’771 patent on February 9, 2021, titled “Methods for the
`
`Administration of Certain VMAT2 Inhibitors.” A true and correct copy of the ’771 patent is
`
`attached as Exhibit J.
`
`66.
`
`Neurocrine owns the ’771 patent through assignment as recorded by the PTO at
`
`Reel 054349, Frame 0110.
`
`67.
`
`68.
`
`The ’771 patent currently expires on October 10, 2037.
`
`The ’771 patent is listed in the Orange Book in connection with NDA No. 209241
`
`for INGREZZA® Capsules.
`
`69.
`
`The PTO issued the ’892 patent on February 16, 2021, entitled “Synthetic Methods
`
`for Preparation of (S)-(2R,3R,11bR)-3-isobutyl-9,10-dimethoxy-2,3,4,6,7,11b-hexahydro-1H-
`
`pyrido[2,1-a]isoquinolin-2-yl 2-amino-3-methylbutanoate di(4-methylbenzenesulfonate).” A true
`
`and correct copy of the ’892 patent is attached as Exhibit K.
`
`70.
`
`Neurocrine owns the ’892 patent through assignment as recorded by the PTO at
`
`Reel 053426, Frame 0765; Reel 053426, Frame 0633; Reel 053440, Frame 0795 and Reel 053800,
`
`Frame 0270.
`
`71.
`
`The ’892 patent currently expires on December 22, 2036.
`
`9
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`

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`72.
`
`The ’892 patent is listed in the Orange Book in connection with NDA No. 209241
`
`for INGREZZA® Capsules.
`
`73.
`
`The PTO issued the ’141 patent on March 9, 2021, titled “Methods for the
`
`Administration of Certain VMAT2 Inhibitors.” A true and correct copy of the ’141 patent is
`
`attached as Exhibit L.
`
`74.
`
`Neurocrine owns the ’141 patent through assignment as recorded by the PTO at
`
`Reel 053540, Frame 0438.
`
`75.
`
`76.
`
`The ’141 patent currently expires on August 10, 2040.
`
`The ’141 patent is listed in the Orange Book in connection with NDA No. 209241
`
`for INGREZZA® Capsules.
`
`77.
`
`The PTO issued the ’997 patent on March 23, 2021, titled “Methods for the
`
`Administration of Certain VMAT2 Inhibitors.” A true and correct copy of the ’997 patent is
`
`attached as Exhibit M.
`
`78.
`
`Neurocrine owns the ’997 patent through assignment as recorded by the PTO at
`
`Reel 052974, Frame 0968.
`
`79.
`
`80.
`
`The ’997 patent currently expires on October 10, 2037.
`
`The ’997 patent is listed in the Orange Book in connection with NDA No. 209241
`
`for INGREZZA® Capsules.
`
`The ANDA
`
`81.
`
`Upon information and belief, Zydus submitted ANDA No. 216137 with the FDA
`
`under 21 U.S.C. § 355(j) seeking FDA approval to manufacture, use, import, offer to sell and/or
`
`10
`
`

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`sell in the United States valbenazine capsules, 40 mg and 80 mg (defined above as “Zydus’ generic
`
`products”), which are generic versions of Neurocrine’s INGREZZA® Capsules.
`
`82.
`
`In a letter dated June 15, 2021 (“Zydus’ Notice Letter”), Zydus Pharmaceuticals,
`
`on behalf of Zydus Worldwide, notified Neurocrine that ANDA No. 216137 was submitted to the
`
`FDA under 21 U.S.C. § 355(j) to obtain approval to manufacture, use, import, offer to sell and/or
`
`sell Zydus’ generic products.
`
`83.
`
`Zydus’ Notice Letter purports to include an exhibit titled “Zydus’s Detailed Factual
`
`and Legal Bases in Support of Its Paragraph IV Certification for Valbenazine Capsules, 40 mg and
`
`80 mg.” Zydus’ Notice Letter stated that Zydus had filed ANDA No. 216137, seeking approval
`
`to manufacture, use, import, offer to sell and/or sell Zydus’ generic products before the expiration
`
`of the patents-in-suit.
`
`84.
`
`Zydus’ Notice Letter states that ANDA No. 216137 contains certifications pursuant
`
`to 21 U.S.C. § 355(j)(2)(A)(vii)(IV), alleging that the claims of the patents-in-suit are invalid,
`
`unenforceable or will not be infringed by the commercial manufacture, use or sale of Zydus’
`
`generic products.
`
`85.
`
`Plaintiff commenced this action within 45 days of receiving Zydus’ Notice Letter.
`
`COUNT I
`
`(INFRINGEMENT OF THE ’952 PATENT)
`
`86.
`
`87.
`
`Plaintiff realleges, and incorporates fully herein, each preceding paragraph.
`
`Upon information and belief, Zydus filed ANDA No. 216137 seeking approval to
`
`manufacture, use, import, offer to sell and/or sell Zydus’ generic products in the United States
`
`before the expiration of the ’952 patent.
`
`11
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`88.
`
`Zydus’ Notice Letter states that Zydus filed with the FDA, pursuant to 21 U.S.C.
`
`§ 355(j)(2)(A)(vii)(IV) and 21 C.F.R. § 314.94(a)(12)(i)(A)(4), a certification alleging that the
`
`claims of the ’952 patent are invalid, unenforceable and/or will not be infringed.
`
`89.
`
`Upon information and belief, in its ANDA No. 216137, Zydus has represented to
`
`the FDA that Zydus’ generic products are pharmaceutically and therapeutically equivalent to
`
`Neurocrine’s INGREZZA® Capsules.
`
`90.
`
`Zydus has actual knowledge of the ’952 patent, as evidenced by Zydus’ Notice
`
`Letter.
`
`91.
`
`Upon information and belief, under 35 U.S.C. § 271(e)(2)(A), Zydus has infringed
`
`at least one claim of the ’952 patent by submitting, or causing to be submitted, to the FDA ANDA
`
`No. 216137, seeking approval to manufacture, use, import, offer to sell or sell Zydus’ generic
`
`products before the expiration date of the ’952 patent.
`
`92.
`
`Upon information and belief, if ANDA No. 216137 is approved, Zydus intends to
`
`and will manufacture, use, import, offer to sell and/or sell Zydus’ generic products in the United
`
`States.
`
`93.
`
`Upon information and belief, if ANDA No. 216137 is approved, Zydus will infringe
`
`one or more claims of the ’952 patent under § 271(a), either literally or under the doctrine of
`
`equivalents, by making, using, offering to sell, selling and/or importing Zydus’ generic products,
`
`and/or by actively inducing infringement by others under § 271(b) and/or contributing to
`
`infringement under § 271(c), unless this Court orders that the effective date of any FDA approval
`
`of ANDA No. 216137 shall be no earlier than the expiration of the ’952 patent.
`
`12
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`94.
`
`Upon information and belief, Zydus knows, should know and intends that
`
`physicians will prescribe and patients will take Zydus’ generic products for which approval is
`
`sought in ANDA No. 216137, and therefore will infringe at least one claim of the ’952 patent.
`
`95.
`
`Upon information and belief, Zydus has knowledge of the ’952 patent and, by its
`
`proposed package insert for Zydus’ generic products, knows or should know that it will induce
`
`direct infringement of at least one claim of the ’952 patent, either literally or under the doctrine of
`
`equivalents.
`
`96.
`
`Upon information and belief, Zydus is aware and/or has knowledge that its
`
`proposed package insert will recommend, suggest, encourage and/or instruct others how to engage
`
`in an infringing use because healthcare professionals and/or patients will use Zydus’ generic
`
`products according to the instructions in the proposed package insert in a way that directly
`
`infringes at least one claim of the ’952 patent.
`
`97.
`
`Upon information and belief, Zydus’ actions relating to Zydus’ ANDA No. 216137
`
`complained of herein were done by and for the benefit of Zydus.
`
`98.
`
`Plaintiff will be irreparably harmed by Zydus’ infringing activities unless this Court
`
`enjoins those activities.
`
`99.
`
`Plaintiff does not have an adequate remedy at law.
`
`COUNT II
`
`(INFRINGEMENT OF THE ’058 PATENT)
`
`100. Plaintiff realleges, and incorporates fully herein, each preceding paragraph.
`
`101. Upon information and belief, Zydus filed ANDA No. 216137 seeking approval to
`
`manufacture, use, import, offer to sell and/or sell Zydus’ generic products in the United States
`
`before the expiration of the ’058 patent.
`
`13
`
`

`

`Case 3:21-cv-14447-KM Document 1 Filed 07/30/21 Page 14 of 50 PageID: 14
`
`
`
`
`
`102. Zydus’ Notice Letter states that Zydus filed with the FDA, pursuant to 21 U.S.C.
`
`§ 355(j)(2)(A)(vii)(IV) and 21 C.F.R. § 314.94(a)(12)(i)(A)(4), a certification alleging that the
`
`claims of the ’058 patent are invalid, unenforceable and/or will not be infringed.
`
`103. Upon information and belief, Zydus admits infringement of at least one claim of
`
`the ’058 patent because Zydus’ Notice Letter did not provide any non-infringement allegation with
`
`respect to at least one claim of the ’058 patent.
`
`104. Upon information and belief, in its ANDA No. 216137, Zydus has represented to
`
`the FDA that Zydus’ generic products are pharmaceutically and therapeutically equivalent to
`
`Neurocrine’s INGREZZA® Capsules.
`
`105. Zydus has actual knowledge of the ’058 patent, as evidenced by Zydus’ Notice
`
`Letter.
`
`106. Upon information and belief, under 35 U.S.C. § 271(e)(2)(A), Zydus has infringed
`
`at least one claim of the ’058 patent by submitting, or causing to be submitted, to the FDA ANDA
`
`No. 216137, seeking approval to manufacture, use, import, offer to sell or sell Zydus’ generic
`
`products before the expiration date of the ’058 patent.
`
`107. Upon information and belief, if ANDA No. 216137 is approved, Zydus intends to
`
`and will manufacture, use, import, offer to sell and/or sell Zydus’ generic products in the United
`
`States.
`
`108. Upon information and belief, if ANDA No. 216137 is approved, Zydus will infringe
`
`one or more claims of the ’058 patent under § 271(a), either literally or under the doctrine of
`
`equivalents, by making, using, offering to sell, selling and/or importing Zydus’ generic products,
`
`and/or by actively inducing infringement by others under § 271(b) and/or contributing to
`
`infringement under § 271(c), unless this Court orders that the effective date of any FDA approval
`
`14
`
`

`

`Case 3:21-cv-14447-KM Document 1 Filed 07/30/21 Page 15 of 50 PageID: 15
`
`
`
`
`
`of ANDA No. 216137 shall be no earlier than the expiration of the ’058 patent and any additional
`
`periods of exclusivity.
`
`109. Upon information and belief, Zydus knows, should know and intends that
`
`physicians will prescribe and patients will take Zydus’ generic products for which approval is
`
`sought in ANDA No. 216137, and therefore will infringe at least one claim of the ’058 patent.
`
`110. Upon information and belief, Zydus has knowledge of the ’058 patent and, by its
`
`proposed package insert for Zydus’ generic products, knows or should know that it will induce
`
`direct infringement of at least one claim of the ’058 patent, either literally or under the doctrine of
`
`equivalents.
`
`111. Upon information and belief, Zydus is aware and/or has knowledge that its
`
`proposed package insert will recommend, suggest, encourage and/or instruct others how to engage
`
`in an infringing use because healthcare professionals and/or patients will use Zydus’ generic
`
`products according to the instructions in the proposed package insert in a way that directly
`
`infringes at least one claim of the ’058 patent.
`
`112. Upon information and belief, Zydus’ actions relating to Zydus’ ANDA No. 216137
`
`complained of herein were done by and for the benefit of Zydus.
`
`113. Plaintiff will be irreparably harmed by Zydus’ infringing activities unless this Court
`
`enjoins those activities.
`
`114. Plaintiff does not have an adequate remedy at law.
`
`COUNT III
`
`(INFRINGEMENT OF THE ’103 PATENT)
`
`115. Plaintiff realleges, and incorporates fully herein, each preceding paragraph.
`
`15
`
`

`

`Case 3:21-cv-14447-KM Document 1 Filed 07/30/21 Page 16 of 50 PageID: 16
`
`
`
`
`
`116. Upon information and belief, Zydus filed ANDA No. 216137 seeking approval to
`
`manufacture, use, import, offer to sell and/or sell Zydus’ generic products in the United States
`
`before the expiration of the ’103 patent.
`
`117. Zydus’ Notice Letter states that Zydus filed with the FDA, pursuant to 21 U.S.C.
`
`§ 355(j)(2)(A)(vii)(IV) and 21 C.F.R. § 314.94(a)(12)(i)(A)(4), a certification alleging that the
`
`claims of the ’103 patent are invalid, unenforceable and/or will not be infringed.
`
`118. Upon information and belief, Zydus admits infringement of at least one claim of
`
`the ’103 patent because Zydus’ Notice Letter did not provide any non-infringement allegation with
`
`respect to at least one claim of the ’103 patent.
`
`119. Upon information and belief, in its ANDA No. 216137, Zydus has represented to
`
`the FDA that Zydus’ generic products are pharmaceutically and therapeutically equivalent to
`
`Neurocrine’s INGREZZA® Capsules.
`
`120. Zydus has actual knowledge of the ’103 patent, as evidenced by Zydus’ Notice
`
`Letter.
`
`121. Upon information and belief, under 35 U.S.C. § 271(e)(2)(A), Zydus has infringed
`
`at least one claim of the ’103 patent by submitting, or causing to be submitted, to the FDA ANDA
`
`No. 216137, seeking approval to manufacture, use, import, offer to sell or sell Zydus’ generic
`
`products before the expiration date of the ’103 patent.
`
`122. Upon information and belief, if ANDA No. 216137 is approved, Zydus intends to
`
`and will manufacture, use, import, offer to sell and/or sell Zydus’ generic products in the United
`
`States.
`
`123. Upon information and belief, if ANDA No. 216137 is approved, Zydus will infringe
`
`one or more claims of the ’103 patent under § 271(a), either literally or under the doctrine of
`
`16
`
`

`

`Case 3:21-cv-14447-KM Document 1 Filed 07/30/21 Page 17 of 50 PageID: 17
`
`
`
`
`
`equivalents, by making, using, offering to sell, selling and/or importing Zydus’ generic products,
`
`and/or by actively inducing infringement by others under § 271(b) and/or contributing to
`
`infringement under § 271(c), unless this Court orders that the effective date of any FDA approval
`
`of ANDA No. 216137 shall be no earlier than the expiration of the ’103 patent and any additional
`
`periods of exclusivity.
`
`124. Upon information and belief, Zydus knows, should know and intends that
`
`physicians will prescribe and patients will take Zydus’ generic products for which approval is
`
`sought in ANDA No. 216137, and therefore will infringe at least one claim of the ’103 patent.
`
`125. Upon information and belief, Zydus has knowledge of the ’103 patent and, by its
`
`proposed package insert for Zydus’ generic products, knows or should know that it will induce
`
`direct infringement of at least one claim of the ’103 patent, either literally or under the doctrine of
`
`equivalents.
`
`126. Upon information and belief, Zydus is aware and/or has knowledge that its
`
`proposed package insert will recommend, suggest, encourage and/or instruct others how to engage
`
`in an infringing use because healthcare professionals and/or patients will use Zydus’ generic
`
`products according to the instructions in the proposed package insert in a way that directly
`
`infringes at least one claim of the ’103 patent.
`
`127. Upon information and belief, Zydus’ actions relating to Zydus’ ANDA No. 216137
`
`complained of herein were done by and for the benefit of Zydus.
`
`128. Plaintiff will be irreparably harmed by Zydus’ infringing activities unless this Court
`
`enjoins those activities.
`
`129. Plaintiff does not have an adequate remedy at law.
`
`17
`
`

`

`Case 3:21-cv-14447-KM Document 1 Filed 07/30/21 Page 18 of 50 PageID: 18
`
`
`
`
`
`COUNT IV
`
`(INFRINGEMENT OF THE ’104 PATENT)
`
`130. Plaintiff realleges, and incorporates fully herein, each preceding paragraph.
`
`131. Upon information and belief, Zydus filed ANDA No. 216137 seeking approval to
`
`manufacture, use, import, offer to sell and/or sell Zydus’ generic products in the United States
`
`before the expiration of the ’104 patent.
`
`132. Zydus’ Notice Letter states that Zydus filed with the FDA, pursuant to 21 U.S.C.
`
`§ 355(j)(2)(A)(vii)(IV) and 21 C.F.R. § 314.94(a)(12)(i)(A)(4), a certification alleging that the
`
`claims of the ’104 patent are invalid, unenforceable and/or will not be infringed.
`
`133. Upon information and belief, in its ANDA No. 216137, Zydus has represented to
`
`the FDA that Zydus’ generic products are pharmaceutically and therapeutically equivalent to
`
`Neurocrine’s INGREZZA® Capsules.
`
`134. Zydus has actual knowledge of the ’104 patent, as evidenced by Zydus’ Notice
`
`Letter.
`
`135. Upon information and belief, under 35 U.S.C. § 271(e)(2)(A), Zydus has infringed
`
`at least one claim of the ’104 patent by submitting, or causing to be submitted, to the FDA ANDA
`
`No. 216137, seeking approval to manufacture, use, import, offer to sell or sell Zydus’ generic
`
`products before the expiration date of the ’104 patent.
`
`136. Upon information and belief, if ANDA No. 216137 is approved, Zydus intends to
`
`and will manufacture, use, import, offer to sell and/or sell Zydus’ generic products in the United
`
`States.
`
`137. Upon information and belief, if ANDA No. 216137 is approved, Zydus will infringe
`
`one or more claims of the ’104 patent under § 271(a), either literally or under the doctrine of
`
`equivalents, by making, using, offering to sell, selling and/or importing Zydus’ generic products,
`
`18
`
`

`

`Case 3:21-cv-14447-KM Document 1 Filed 07/30/21 Page 19 of 50 PageID: 19
`
`
`
`
`
`and/or by actively inducing infringement by others under § 271(b) and/or contributing to
`
`infringement under § 271(c), unless this Court orders that the effective date of any FDA approval
`
`of ANDA No. 216137 shall be no earlier than the expiration of the ’104 patent and any additional
`
`periods of exclusivity.
`
`138. Upon information and belief, Zydus knows, should know and intends that
`
`physicians will prescribe and patients will take Zydus’ generic products for which approval is
`
`sought in ANDA No. 216137, and therefore will infringe at least one claim of the ’104 patent.
`
`139. Upon information and belief, Zydus has knowledge of the ’104 patent and, by its
`
`proposed package insert for Zydus’ generic products, knows or should know that it will induce
`
`direct infringement of at least one claim of the ’104 patent, either literally or under the doctrine of
`
`equivalents.
`
`140. Upon information and belief, Zydus is aware and/or has knowledge that its
`
`proposed package insert will recommend, suggest, encourage and/or instruct others how to engage
`
`in an infringing use because healthcare professionals and/or patients will use Zydus’ generic
`
`products according to the instructions in the proposed package insert in a way that directly
`
`infringes at least one claim of the ’104 patent.
`
`141. Upon information and belief, Zydus’ actions relating to Zydus’ ANDA No. 216137
`
`complained of herein were done by and for the benefit of Zydus.
`
`142. Plaintiff will be irreparably harmed by Zydus’ infringing activities unless this Court
`
`enjoins those activities.
`
`143. Plaintiff does not have an adequate remedy at law.
`
`19
`
`

`

`Case 3:21-cv-14447-KM Document 1 Filed 07/30/21 Page 20 of 50 PageID: 20
`
`
`
`
`
`COUNT V
`
`(INFRINGEMENT OF THE ’137 PATENT)
`
`144. Plaintiff realleges, and incorporates fully herein, each preceding paragraph.
`
`145. Upon information and belief, Zydus filed ANDA No. 216137 seeking approval to
`
`manufacture, use, import, offer to sell and/or sell Zydus’ generic products in the United States
`
`before the expiration of the ’137 patent.
`
`146. Zydus’ Notice Letter states that Zydus filed with the FDA, pursuant to 21 U.S.C.
`
`§ 355(j)(2)(A)(vii)(IV) and 21 C.F.R. § 314.94(a)(12)(i)(A)(4), a certification alleging that the
`
`claims of the

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