Appendix — TorPharm, Inc. v. Genpharm, Inc.

TABLE OF CONTENTS OF APPENDIX

PAGE

Judgment of the United States Court of

Appeals for the Federal Circuit for which

review is sought, dated May 17, 2000 ...... App. 1

Order of the United States District Court

for the Eastern District of North Carolina,

RO Se: OU, EE a os aw ee oo ee App. 3

Order of the United States Court of Appeals

for the Federal Circuit denying rehearing,

ee ere are App. 18

SS IS Sei ae i te Se

-App. 1

[Filed May 17, 2000]

NOTE: Pursuant to Fed. Cir. R. 47.6, this deposition is

not citable as precedent. It is a public record. The dis-

position will appear in tables published periodically.

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

99-1362, - 1363, -1364

TORPHARM, INC.,

Plaintiff-Appellant,

v.

GENPHARM INC. and MYLAN

LABORATORIES, INC.,

Defendants-Appellees,

and

NOVOPHARM, LTD., NOVOPHARM USA, INC.,

and GRANUTEC, INC.,

Defendants-Appellees.

JUDGMENT

ON APPEAL from the United States District Court for

the Eastern District of North Carolina in CASE NO(S).

97-CV-658, 97-CV-686, and 97-CV-968.

This CAUSE having been heard and considered it is

ORDERED AND ADJUDGED:

AFFIRMED. See Fed. Cir. R. 36

App. 2

PER CURIAM RADER, GAJARSA, and LINN,

Circuit Judges,

ENTERED BY ORDER OF THE COURT

/s/ Jan Horbaly

Jan Horbaly, Clerk

DATED May 17 2000

App. 3

[Filed March 10, 1999]

IN THE

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF, NORTH CAROLINA

WESTERN DIVISION

No. 5:97-CV-686-BO(3)

No. 5:97-CV-658-BO(2)

No. 5:97-CV-968-BO(3)

GENPHARM INC., and

MYLAN LABORATORIES, INC.,

Plaintiffs,

v.

TORPHARM, INC.

Defendant.

TORPHAR\M, INC.,

Defendant/Counter-Plaintiff,

Vv.

GENPHAR\M, INC.,

Plaintiff/Counter-Defendant,

and

MYLAN LABORATORIES, INC.,

Counter-Defendant.

NOVOPHARM LIMITED, and

NOVOPHARM USA, INC.,

Plaintiffs, ORDER

v. (under seal)

TORPHAR\M, INC.,

Defendant.

ee ee ee i a a a a ee a oe a a a a a ee

TORPHARM, INC.,

Plaintiff,

SEALED

V.

NOVOPHARM, LTD.,

NOVOPHARM USA, INC., and

GRANUTEC, INC.,

Defendants.

These cases are before the Court on various motions,

including dispositive motions. This order will address

one nondispositive motion that is necessary to make the

dispositive motions ripe for ruling, and will grant

certain dispositive motions. As a result, those remain-

ing motions not specifically addressed will be moot.

BACKGROUND

These cases involve Form 1 ranitidine hydrochloride.

Form 1 ranitidine hydrochloride was disclosed in sever-

al patents belonging to Glaxo Wellcome Inc., which

were issued in the late 1970s and early 1980s. Rani-

tidine hydrochloride gained wide use in the treatment

of ulcers. On April 7, 1995, an application was filed for

what would become United States Patent No. 5,523,423

(“the ‘423 Patent”). TorPharm is the assignee and pres-

ent owner of the ‘423 patent. Claim 1 of the ‘423 patent

describes a form of Form 1 ranitidine hydrochloride

having (i) a bulk density of not less than about 0.23

grams/milliliter and (ii) a tap density of not less than

about 0.28 grams/milliliter, along with “improved filtra-

tion and drying characteristics.” The parties stipulate

that Claims 2-8 of the ‘423 patent are no longer at

issue.

App. 5

A. Novopharm, Ltd. and Novopharm USA v. TorPharm

(5:97-CV-658-BO(2))

TorPharm v. Novopharm, Ltd., Novopharm USA,

and Granutec, Inc. (5:97-C V-968-BO(3))

On August 21, 1997, Novopharm and Novopharm

USA filed a complaint against TorPharm seeking de-

claratory judgment of non-infringement and invalidity

of the ‘423 patent. TorPharm counterclaimed, alleging

infringement of the ‘423 patent. This action is ashen

Action No. 5-97-CV-658-BO(2).

On December 18, 1997, TorPharm filed a complaint in

the Northern District of Illinois against Novopharm,

Novopharm USA, and Granutec, Inc., alleging willful

infringement of the ‘423 patent. That action was trans-

ferred to the Eastern District of North Carolina, and is

Civil Action No. 5:97-968-BO(3). Novopharm, Novo-

pharm USA, and Granutec’ counterclaimed, seeking

declaratory judgment of patent invalidity and non-

infringement.

These two actions were consolidated for purposes of

discovery and trial. Novopharm has filed a number of

dispositive motions. On June 11, 1998, Novopharm filed

for Summary Judgment alleging that the ‘423 patent is

invalid under 35 U.S.C. § 102(b), also known as the

“on-sale” bar. Novopharm has also moved for summary

judgment on the grounds that the ‘423 patent is invalid

for failure to comply with the “definiteness” and “en-

ablement” requirements of 35 U.S.C. § 112. There is a

1 For purposes of convenience, this order will abbreviate the

parties Novopharm, Ltd. , Novopharm USA, Inc. and Granutec,

_ Inc. as “Novopharm.”

App. 6

pending motion to increase the page limit for Novo-

pharm’s Memorandum in Reply to TorPharm’s Opposi-

tion to Novopharm’s Motion for Summary Judgment

Under Fed. R. Civ. P. 56(c). For good cause shown, this

Motion will be granted, and the underlying Motion for

Summary Judgment is ripe for ruling, as is Novo-

pharm’s second motion seeking summary judgment.

B. Genpharm v. TorPharm; Genpharm and Mylan’ v.

TorPharm (5:97-CV-686-BO(3))

On August 28, 1997, Genpharm filed a Complaint in

this Court seeking a declaratory judgment of non-

infringement and invalidity of United States Patent No.

5,523,423 (“the ‘423 patent”). Genpharm seeks a judg-

ment declaring the ‘423 patent invalid, an injunction

permanently enjoining TorPharm and its agents from

enforcing the ‘423 patent against Genpharm, costs, and

certain other relief.

TorPharm counterclaimed, alleging infringement of

the ‘423 patent by Genpharm and its distributor,

Mylan. TorPharm seeks an injunction enjoining Gen-

pharm and Mylan from infringing the ‘423 patent,

damages, and certain other relief.

Genpharm and Mylan put forward various affirmative

defenses to TorPharm’s counterclaim. These include an

allegation that the ‘423 patent is invalid for failure to

satisfy the conditions for patentability set forth in 35

* For reasons of convenience, the parties Genpharm Inc. and

Mylan Laboratories, Inc. will be referred to in this order as

“Genpharm” or “Genpharm and Mylan.”

App. 7

U.S.C. §§ 102-03 and/or failure to comply with the re-

quirements of 35 U.S.C. §§ 112 and 116.

On August 21, 1998, Genpharm and Mylan filed for

Summary Judgment on the grounds that TorPharm’s

‘423 Patent is invalid due to the on-sale bar. This Mo-

tion essentially adopts the position laid out in Novo-

pharm’s Motion for Summary Judgment described

above. Genpharm has also moved for summary judg-

ment on the grounds that the ‘423 patent is invalid for

obviousness. Genpharm also makes the alternative ar-

gument that TorPharm’s ‘423 patent, if valid, does not

encompass the product that Genpharm is importing

into the United States, and thus Genpharm is not in in-

fringement of the ‘423 patent. All of these motions are

ripe for ruling.

C. Consolidation of the Cases

On March 3, 1998, the Court held a hearing in these

matters. These matters were earlier consolidated for

purposes of discovery, and at the March 3 hearing, the

parties acknowledged that the issues at hand in the

matters are identical. Therefore, the Court will address

TorPharm’s disputes with both Genpharm and Novo-

pharm at this time. ;

ANALYSIS

A motion for summary judgment cannot be granted

unless there are no genuine issues of material fact for

trial. Fed. R. Civ. P. 56(c); See Celotex Corp. v. Catrett,

477 U.S. 317 (1986). The movant must demonstrate the

lack of a genuine issue of fact for trial, and if that

App. 8

burden is met, the party opposing the motion must “go

beyond the pleadings” and come forward with evidence

of a genuine factual dispute. Jd. at 324 (1986). The

Court must view the facts and the inferences drawn

from the facts in the light most favorable to the non-

moving party. See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587-88 (1986). Conclusory

allegations are not sufficient to defeat a motion for

summary judgment. Cf. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 (1986).

A. The “On Sale” Bar of 35 U.S.C. $ 102(b)

The subject matter of the ‘423 patent is a form of

Form 1 ranitidine hydrochloride having (i) a bulk

density of not less than about 0.23 grams/milliliter and

(ii) a tap density of not less than about 0.28 grams/

milliliter. Novopharm and Genpharm, in separate sum-

mary judgment motions, argue that the claims of the

‘423 patent are invalid under 35 U.S.C. § 102(b) be-

cause the subject matter of those claims was “on sale”

in the United States more than one year before April 7,

1995, the date upon which TorPharm filed its applica-

tion for the ‘423 patent.°

According to records produced to the Court, in mid-

1992 Interchem Corporation (“Interchem”), a United

States supplier of pharmaceutical bulk raw materials,

* According to 35 U.S.C. § 102, “A person shall be entitled to

a patent unless... the invention was patented or described in

. printed publication in this or a foreign country or in public

use or on sale in this country, more than one year prior to the

date of the application for patent in the United States. . .”

App. 9

sold over 600 pounds‘ of bulk Form 1 ranitidine hydro-

chloride ic Geneva Pharmaceuticals, Inc. (“Geneva”).

This large quantity of bulk Form 1 ranitidine hydro-

chloride (“Form 1”) was composed of three lots of Form

1. Two of these three lots of Form 1 had bulk densities

of more than .23 grams/milliliter and tap densities of

more than .28 grams/milliliter.° Therefore, more than

three years before TorPharm applied for the “423 pa-

tent, a quantity of material with the characteristics

described in the ‘423 patent was “on-sale” in the United

States.

The question of whether a particular activity or trans-

action raises the on-sale bar under § 102(b) is a ques-

tion of law. See Robotic Vision Systems v. View Engi-

neering, Inc., 112 F.3d 1163, 1167 (Fed. Cir. 1997). The

Supreme Court has recently addressed the standards

for application of the on-sale bar. See Pfaff v. Wells

Elecs., Inc., 119 S.Ct. 304 (Nov. 10, 1998). “[T]he on-

sale bar applies when two conditions are satisfied be-

fore the critical date. First, the product must be the

subject of a commercial offer for sale. . . . Second, the

invention must be ready for patenting.” Jd. at 311-12.

* According to the evidence before the Court, Interchem sold

Geneva 289.800 kilograms of Form 1 ranitidine hydrocholoride

at a price of $530.00/kilogram, for a total cost of $153,594.00.

5 After taking delivery of the three lots of Form 1 from

Interchem, Geneva ran a standard battery of tests on the lots.

These tests demonstrated that two of the three lots had bulk

densities of more than 0.23 grams/milliliter and tap densities

of more than 0.28 grams/milliliter. Geneva Pharmaceuticals,

Inc. Master Analytical Form Raw Material Product Specifica-

tions and Data Sheets, dated September 1992.

App. 10

In this case, it is clear that there was not only a

commercial offer for sale, but that the offer was accept-

ed, and an actual sale took place. Record evidence of a

signed purchase agreement before the critical date

establishes an offer for sale sufficient to invoke the on-

sale bar. See Weatherchem Corp. v. J.L. Clark, Inc., 163

F.3d 1326, 1333 (Fed. Cir. Dec. 7, 1998). It is also clear

that the invention was ready for patenting,® as it had

been reduced to practice. Indeed, a quantity of the ma-

terial in question was delivered to purchaser Geneva.

TorPharm argues that the material purchased by

Geneva ‘may not have had-the “improved drying and

filtration characteristics” claimed in the ‘423 patent.

However, the ‘423 patent does not describe these “im-

proved drying and filtration characteristics,” and also

does not describe how to measure them.’ The only way

® This, of course, assumes that the subject matter of the ‘423

patent was appropriate for patenting at all. As discussed

below, the ‘423 patent should never have been issued. Howev-

er, that discussion is irrelevant to an analysis of whether the

on-sale bar applies.

” As discussed below, it would be impossible to show that a

quantity of Form 1 had the “improved filtration and drying

characteristics” claimed in the ‘423 patent, because no

quantifiable description of these claimed characteristics is

found in the patent. The applicants for the ‘423 patent merely

stated that “the products of the prior art are smaller, more

fluffy and therefore have inferior drying and filtration charac-

teristics to Applicant’s invention.” Therefore, it appears that

any quantitation of these “improved filtration and drying

characteristics” must be directly related to the bulk and tap

density measurements described in the ‘423 patent. Neither

the Courts nor the public should be expected to apply the

amorphous and subjective limitation of “improved filtration

and drying characteristics” to the 423 patent beyond those

bulk and tap density measurements.

CAPE IE EI LY ON LEGER ERB LONE SL ORE BE + Gllnstay sheads tn BGG Sead ne Ueda ec

App. 11

to distinguish the product claim in the ‘423 patent from

any other Form 1 ranitidine hydrochloride is by the

bulk and tap densities provided. Two of the three lots

purchased by Geneva met these tests.®

TorPharm also argues that the evidence which proves

the sale to Geneva is not admissible, and that summary

judgment should not be based on this allegedly inad-

missible evidence. However, the records in question are

admissible under the business records hearsay excep-

tion of Federal Rule of Evidence 803(6).° The “Geneva

Pharmaceuticals, Inc. Master Analytical Form Raw

Material Product Specification and Data Sheets” relied

upon by Genpharm and Novopharm fall squarely within

the definition of business records. The various records

in question have been appropriately authenticated, as

required by Federal Rule of Evidence 901, by the depo-

sition testimony of Geneva managing agent Sandra

Tigner, who identified all necessary records, including

the purchase order by which Geneva ordered the Form

I at issue, the invoice sent to Geneva by Interchem, the

check paying for the Form 1 at issue, and the raw

® TorPharm also claims that the material purchased by

Geneva was somehow contaminated. However, they provide no

evidence to this effect. Unsubstantiated allegations or state-

ments such as that made by TorPharm are not sufficient to

defeat a motion for summary judgment.

® Under Rule 803(6), “[a] memorandum, report, record, or data

compilation, in any form, of acts, events, conditions, opinions,

or diagnoses, made at or near the time by or from information

transmitted by, a person with knowledge, if kept in the course

of a regularly conducted business activity. . .” is not excluded

by the hearsay rule.

App. 12

material data sheets used to record the bulk and tap

densities of the Form 1 sold to Geneva.

Finally, TorPharm argues that the sale of Form 1 to

Geneva was secret and confidential, and thus did not

trigger the on-sale bar. However, there is absolutely no

requirement that:a sale be publicized to trigger 35

U.S.C. § 102(b). See J.A. LaPorte, Inc. v. Norfolk Dredg-

ing Co., 787 F.2d 1577 (Fed. Cir. 1986), cert. denied,

479 U.S. 884 (1986). Indeed, for purposes of the

§ 102(b) bar, Geneva was a member of the relevant

public. See id. at 1583. In the well-known Corset Case,

the Supreme Court stated that “[i]f an inventor, having

made his device, gives or sells it to another, to be used

by the donee or vendee, without limitation or restric-

tion, or injunction of secrecy, and it is so used, such use

is public, even though the use and knowledge of the use

may be confined to one person.” Egbert v. Lippman, 104

U.S. 333, 336 (1881). Thus, the sale of Form 1 material

from Interchem to Geneva, even if “secret,” was suffi-

cient to trigger the on-sale bar.

Genpharm and Novopharm have produced ample ad-

missible evidence to support their assertion that claim

1 of the ‘423 patent is invalid under the on-sale bar of

35 U.S.C. § 102(b). Therefore, their motions for sum-

mary judgment will be granted.

B. Other Grounds for Summary Judgment

Because the Court is granting the motions for sum-

mary judgment based on the on-sale bar, the other

summary judgment motions need not be addressed.

However, in the interests of completeness, the Court

App. 13

will briefly analyze certain issues raised by other dis-

positive motions filed in this matter.

Genpharm alleges that the ‘423 patent is invalid on

grounds of obviousness. While a detailed analysis of the

factors laid out in Graham v. John Deere is beyond the

scope of this order, a brief application of the Graham

factors to this case demonstrates that the ‘423 patent

indeed is invalid on grounds of obviousness. The four

Graham factors are (1) the scope and content of the

prior art; (2) the level of ordinary skill in the art; (3)

the differences between the prior art and the claimed

invention; and (4) secondary differences such as com-

mercial success, long felt but unresolved needs, and

failure of others. 383 U.S. 1, 17 (1966).

The undisputed evidence in these cases shows that

the‘423 patent claims involve at most a routine optimi-

zation of known factors to produce material with the

same or similar bulk and tap densities as the prior art.

Routine optimization such as this should not lead to

issuance of a patent. See In re Huang, 100 F.3d 135,

139 (Fed. Cir. 1996); see also Merck & Co., Inc. v. Bio-

craft Labs. Inc., 874 F.2d 804, 809 (Fed. Cir. 1989), cert.

denied, 493 U.S. 975 (1989).

Analysis of the evidence shows that the principles

necessary to production of the material claimed in the

‘423 patent were in the public domain by 1993 at the

latest. In fact, much of the necessary information was

published in this Court’s opinion in Glaxo, Inc. v. Novo-

pharm Litd., 830 F. Supp. 871 (E.D.N.C. 1993), aff'd 52

F.3d 1043 (Fed. Cir. 1995), cert. denied, 516 U.S. 988

(1995). This information was therefore prior art well be-

App. 14

fore issuance of the ‘423 patent for purposes of the first

Graham obviousness factor.”

The other Graham factors do not support TorPharm’s

position. The evidence shows that the tap and bulk

densities claimed in the “423 patent are not significant-

ly different from prior art material. The process claims

in the ‘423 patent call for use of a C3-C4 alcohol solvent

under anhydrous conditions. However, Glaxo’s prior art

long ago disclosed the use of a C4 alcohol solvent. Thus,

the second Graham factor mitigates against validity of

the ‘423 patent. Undisputed deposition testimony dem-

onstrated that ordinary skill in the art is a chemist

with a Ph.D. or a B.S. and some experience.”"’ Further

undisputed testimony showed that producing material

with the properties claimed in the ‘423 patent would be

routine skill to such a chemist. Therefore, the third

Graham factor does not support TorPharm’s position.

TorPharm has not presented significant arguments re-

lating to the fourth Graham factor.

© TorPharm argues that a legal order such as this Court’s

opinion in Novopharm I is not prior art generally available to

one of ordinary skill in the art. Considering the pervasive

litigation surrounding drug patents, the Court finds that a

published legal opinion would certainly be brought to the

attention of every significant pharmaceutical company by its

counsel. What the companies do with that information once

they receive it is irrelevant; the information is available to the

companies’ employees and agents, who presumably are of

ordinary skill in the art.

“ TorPharm argues that one deponent’s opinion that reason-

able skill in the art is akin to a “reasonable pharmaceutical

formulator” contradicts other experts’ opinion that a chemist

with a Ph.D. or a B.S. and experience is the level of ordinary

skill in the art. The Court finds these statements to be

completely compatible.

App. 15

After full consideration of the evidence, it is clear to

the Court that detailed application of the Graham

factors would show that the ‘423 patent is invalid for

obviousness. If the Court were not granting summary

judgment based on the on-sale bar, it would grant

summary judgment based on obviousness.

Novopharm argues that the ‘423 patent is invalid for

failure to comply with the “definiteness” and “enable-

ment” requirements of 35 U.S.C. § 112. Because the

Court is granting summary judgment based on the on-

sale bar, it will give only cursory attention to this

position.

Upon examination of the evidence, it appears to the

Court that the specific bulk and tap density limitations

laid out in Claim 1 of the ‘423 patent are the only

things that differentiate or define the “improved form

of Form 1 ranitidine hydrochloride” claimed in the

patent. Because the ‘423 patent does not describe the

specific experimental method to be used to measure the

bulk and tap densities of the claimed Form 1 material,

it is difficult for others to replicate the claimed material

based on the description in the patent. It is argued that

the experimental error in measuring the bulk density

of Form 1 ranitidine hydrochloride by any one method

is between 10 and 20%. Therefore, it is unlikely that

others can replicate the product claimed in the ‘423

patent without knowing which method or combination

of methods was used.’ This may conflict with the

TorPharm claims that the word “about” in Claim 1 cures

any lack of definiteness in the description of the appropriate

methodology for measuring bulk and tap density. While it may

(continued...)

a_i aaa a ial

App. 16

“definiteness” requirement of 35 U.S.C. § 112, which

considers “whether those skilled in the art would un-

derstand what is claimed when the claim is read in

light of the specification.” Morton Int'l. Inc. v. Cardinal

Chem. Co., 5 F.3d 1464, 1470 (Fed. Cir. 1993). Because

Claim 1’s failure to provide specific methods requires

others to conduct “undue experimentation” to duplicate

the claimed material, the ‘423 patent may not meet the

“enablement” standard of 35 U.S.C. § 112. See Genen-

tech Inc. v. Nova Nordisk A/V, 108 F.3d 1361, 1365

(Fed. Cir. 1997), cert. denied, 118 S.Ct. 397 (1997).

Because the Court has already presented ample justi-

fication for its decision to grant summary judgment

against TorPharm, it need not and will not reach a

conclusion on the issues of “definiteness” and “enable-

ment.” Because this Court finds that the ‘423 patent is

invalid, it need not address Genpharm’s alternative ar-

gument that summary judgment should be granted be-

cause Genpharm has not infringed the ‘423 patent.

2 (...continued)

be entirely acceptable to use such a modifier to describe an

acceptable variance, the possibility of a 20% variation would

not appear to be covered by the word “about.”

'S TorPharm argues that those of ordinary skill in the art

would have no difficulty replicating the work described in the

‘423 patent. While this defense might serve to protect

TorPharm from summary judgment on definiteness or

enablement grounds, it would appear to weaken its case on the

issue of obviousness.

App. 17

CONCLUSION

After full consideration of the parties’ arguments, and

for the reasons discussed above, the Motion for Sum-

mary Judgment Under Rule 56(c) filed by Novopharm

Ltd., Novopharm USA, and Granutec, Inc on June 11,

1998 is GRANTED. The Motion for Summary Judgment

of Patent Invalidity under 35 U.S.C. § 102(b) tiled by

Genpharm Inc. and Mylan Laboratories, Inc. on August

21, 1998 is also GRANTED. Accordingly, this Court

rules that United States Patent No. 5,523,423 is invalid

for the reasons described above. Because the summary

judgment motions filed by Genpharm and Novopharm

have been granted as described above, all other motions

in this case are now moot, and are according!y DIS-

MISSED AS MOOT. The clerk shall provide copies of

this order to the parties and their counsel.

SO ORDERED.

This 8" day of March, 1999.

TERRENCE W. BOYLE

Chief United States District Judge

I certify the foregoing to be a true

and Correct copy of the original.

David W. Daniel, Clerk

United States District Court

Eastern District of North Carolina

By

Deputy Clerk

App. 18

[Filed July 11, 2000)

United States Court of Appeals

for the Federal Circuit

99-1362, -1363, -1364

TORPHARM, INC.,

Plaintiff-Appellant,

v.

GENPHARM INC. and

MYLAN LABORATORIES, INC.,

Defendants-Appellees,

and

NOVOPHARM, LTD., NOVOPHARM USA, INC.,

and GRANUTEC, INC.,

Defendants-Appellees.

ORDER

A combined petition for panel rehearing and rehear-

ing en banc having been filed by the APPELLANT, and

a response thereto having been invited by the court and

filed by the APPELLEES and the petition for rehearing

having been referred to the panel that heard the

appeal, and thereafter the petition for rehearing en

banc and response having been referred to the circuit

judges who are in regular active service.

UPON CONSIDERATION THEREOF, it is

ORDERED that the petition for rehearing be, and the

same hereby is, DENIED and it is further

App. 19

ORDERED that the petition for rehearing en banc be,

and the same hereby is, DENIED.

The mandate of the court will issue on July 18, 2000.

Circuit Judge LOURIE and Circuit Judge SCHALL

did not participate in the vote.

FOR THE COURT,

/s/ Jan Horbaly

Jan Horbaly

Clerk

Dated: July 11, 2000

cc: Hugh L. Moore

Robert F. Green, Edgar H. Haug

TORPHARM V NOVOPHARM, 99-1362, -1363, -1364

(DCT - 97-CV-658)

Note: Pursuant to Fed. Cir. R. 47.6, this order is not

citable as precedent. It is a public record.