`
`IN THE UN ITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ELAN PHARMA
`INTERNATIONAL LTD,
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`Plaintiff,
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`v.
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`ABRAXIS BIOSCIENCE, INC,
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`Defendant.
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`)
`)
`)
`)
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`)
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`C.A. No. 06-438 GMS
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`J UDGMENT
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`This aClion came before the Court for a trial by jury. The issues have been tried and the
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`j ury rendered its verdict on June 13, 200S. The verdict was accompan ied by a verdict form (0. 1.
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`613), a copy of which is attac hed hereto. Therefore,
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`IT IS HEREBY ORDERED AND ADJUDGED thaLjudgmenl be and is hereby entered in
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`favor or the plaintiff, ELAN PHARMA INTERNATIONAL LTD and against the defendant,
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`ABRAXIS BIOSCIENCE, INC. , that ABRAX IS BIOSCIENCE, INC. , literally infringes Claims
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`3 and 5 of U.S. Patent No. 5,399,363 in the amount of FIfTY-F IVE MILLION TWO HUNDRED
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`THIRTY THOUSAND DOLLARS ($55,230,000.00) for damages from January 7, 2005 through
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`June 13, 2008, FIND ING A REASONABLE ROYALTY RATE OF SIX PERCENT (6%); and
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`that the infringemen t is not willful;
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`IT IS FURTHER ORDERED that judgment be and is hereby entered in favor oflhe
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`plaintiff, ELAN PHARMA INTERNATIONAL LTD and aga inst the defendan t, ABRAX IS
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`BIOSCIENCE, [NC., for the validity o f Claims 1, 3, 5, 10, and 11 of U.S. Paten t No. 5,399,363
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`and C laims 1, 2, 3, 13 , 14, and 15 of U.S. Patent No. 5,834,025;
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`Apotex v. Abraxis - [PR20 18-00 152, Ex. 10 11, p.O 1 of?
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`
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`Case 1:06-cv-00438-GMS Document 614 Filed 06/16/08 Page 2 of 2 PagelD #: 8761
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`IT IS FURTHER ORDERED that judgment be and is hereby entered in favor of the
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`plaintiff, ELAN PHARMA INTERNATIONAL LTD and against the defendant, ABRAX IS
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`BIOSCIENCE , INC. , for the enforceability ofV.S. Palent Nos. 5,399,363 and 5,834,025.
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`Dated: June 16, 2008
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`lsi Gregory M. Sleet
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`UNITED STATES DISTRICT CH IEF JUDGE
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`2
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`Apotex v. Abraxis - [PR20 18-00 152, Ex. 1011 , p.02 of?
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`
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`Case 1:06-cv-00438-GMS Document 614-1 Filed 0 6/16/08 Page 1 of 5 PagelD #: 8762
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`VERDICT FORM
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`We, the j ury, unanimo usly fi nd as follows:
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`QUESTION I: INFRINGEMENT
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`As to the '363 Patent ONLY:
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`Question No. l(a): Literal Infringement Of ~ 363 Patent
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`Do you fi nd that Elan has proven, by a preponderance o f the evide nce . that A braxis has literally
`infringed any of the fol lowing claims of U.S. Patent No. 5,399,363',)
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`Check YES (for Elan) or NO (for Abraxis) for each claim:
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`C laim 3
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`C laim 5
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`NO (for Abraxis)
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`YES (for Elan)
`V
`;/
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`PLEASE PROCEED TO QUESTION 2.
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`Apotex v. Abraxis -IPR20 IS-00I S2, Ex. 10 11 , p.03 of7
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`
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`Case 1:06-cv-00438-GMS Document 614-1 Filed 06/16/08 Page 2 of 5 Page lD #: 8763
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`QUESTION 2: INVALIDITY
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`As to the '363 Patent:
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`Question No. 2(a)(i): Invalidity Of '363 Patent For Lack of Enablement Under 35 U.S.c.
`Section 112
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`Do you find that Abraxis has proven, by clear and convincing evidence, that any oflhe following
`claims of U.S. Patent No. 5,399,3 63 is invalid for lack of enablement?
`
`Check YES (for Abraxis) or NO ( for Elan) for each claim:
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`YES (for Abraxis)
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`NO (for Elan)
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`Claim 1
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`C laim 3
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`C laim 5
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`C laim 10
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`Claim 11
`
`I
`
`V
`V
`V
`
`±
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`Question No. 2(a)(ii): Invalidity Of '363 Patent For Lack Of Adequate Written Description
`Under 35 U.S.c. Section 1 J 2
`
`Do you find that Abraxis has proven, by clear and convincing evidence, that any of the following
`claims of U.S. Patent No. 5,399,363 is invalid for Jack of adequate written description?
`
`Check YES (for Abraxis) or NO (for Elan) for each claim:
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`YES (for Abraxis)
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`C laim 1
`
`Claim 3
`
`Claim 5
`
`Claim 10
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`Claim 11
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`NO (for Elan)
`, /
`V
`V
`V
`V
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`Apotex v. Abraxis -IPR20 IS-00I S2, Ex. 1011 , p.04 of7
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`
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`Case 1:06-cv-00438-GMS Document 614-1 Filed 06/16/08 Page 3 of 5 Page lD # : 8764
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`As to the '025 Patent:
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`Question No. 2(b)(i): Invalidity or '025 Patent For Lack of Enahlement Under 35 V.S.c.
`Section 112
`
`Do you find that Abraxis has proven, by clear and convincing evidence, that any of the following
`claims or U.S. Patent No. 5,834,025 is invalid for lack ofenablement?
`
`Check YES (for Abraxis) or NO (for Elan) for each claim:
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`YES (for Abraxis)
`
`Claim 1
`
`Claim 2
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`Claim 3
`
`Claim 13
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`Claim 14
`
`Claim 15
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`NO (for Elan)
`V
`V
`V
`V
`V
`V-
`
`I
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`Question No. 2(b)(ii): Invalidity Of '025 Patent For Lack Of Adequate Written Description
`Under 35 U.S.C. Section 112
`
`Do you find that Abraxis has proven, by clear and convincing ev idence, that any oflhe following
`claims of U.S. Patent No. 5,834,025 is invalid for lack of adequate written description?
`
`Check YES (for Abraxis) or NO (for Elan) for each claim:
`
`YES (for Abraxis)
`
`NO (for Elan)
`
`Claim 1
`
`Claim 2
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`Claim 3
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`Claim 13
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`Claim 14
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`Claim IS
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`PLEASE PROCEED TO QUESTION 3.
`
`V
`t/
`i /
`J/
`V
`V
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`Apotex v. Abraxis -IPR20 IS-00IS2, Ex. 1011 , p.OS of7
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`
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`Case 1:06-cv-00438-GMS Document 614-1 Filed 0 6/16/08 Page 4 of 5 PagelD #: 8765
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`QUESTION 3: UNENFORCEABILITY
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`As to the '363 Patent:
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`Question No. 3(a): Inequitable Conduct Concerning '363 Patent
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`Do yOll find that Abraxis has proven, by clear and convinci ng evidence. that U.S. Patent
`No. 5,399,363 is unenforceable due to inequitable conduct?
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`Check YES (for Abraxis) or NO (for Elan):
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`YES (for Abraxis)
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`As to the '025 Patent:
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`Question No. 3(b): Inequitable Conduct Concerning '025 Patent
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`Do you find that Abraxis has proven, by clear and convincing evidence, that U.S. Patent
`No. 5,834,025 is unenforceable due to inequitable conduct?
`
`Check YES (for Abraxis) or NO (for Elan):
`
`YES (for Abraxis)
`
`NO (for Elan>=]
`V ~
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`Apotex v. Abraxis -IPR20 IS-00I S2, Ex. 10 11 , p.06 of7
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`
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`Case 1:06-cv-00438-GMS Document 614-1 Filed 06/16/08 Page 5 of 5 PagelD #: 8766
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`ONLY ANSWER QUESTIONS 4 AND 5 IF YOU FIND> THAT ABRAXlS HAS
`INFRINGED AT LEAST ONE VALID AND ENFORCEABI"E CLAIM OF TIlE '363
`PATENT. OTIlERWlSE, YOU ARE FINISHED, AND THE FOREPERSON SHOULD
`PLEASE SIGN THE SIGNATURE BLOCK BELOW.
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`QUESTION 4: WILLFULNESS
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`Has Elan proven, by clear and convincing evidence. that any infringement of claims 3 or 5 of
`U.S. Patent No. 5,399,363 by Abraxis waS' willful?
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`Answer YES (for Elan) or NO (for Abraxis):
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`YES (for Elan)
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`QUESTION 5: MONETARY DAMAGES
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`If you find that Abraxis has infringed a valid and enforcclble claim of U,S. Patent
`No. 5-,399,363, then please identify the amount of monetary damages that will compensate Elan
`for Abraxis's infringement from January 7, 2005 through June yr. 2008.
`$ 5S; t jD t CKJo
`13)
`
`Please also identify the applicable reasonable royalty rate you us·:d to calculate any damages
`above.
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`_ ---"'6 ___ %
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`Apotex v. Abraxis -IPR20IS-00IS2, Ex. 1011 , p.07 of7
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