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Eaton Veterinary Pharm., Inc. v. Diamondback Drugs of Del. LLC

United States District Court, D. Arizona

November 18, 2014

EATON VETERINARY PHARMACEUTICAL INC., an Arizona corporation, Plaintiff,
v.
DIAMONDBACK DRUGS OF DELAWARE LLC, a Delaware limited liability company, et al., Defendants

For Eaton Veterinary Pharmaceutical Incorporated, an Arizona corporation, Plaintiff: J Tyrrell Taber, Aiken Schenk Hawkins & Ricciardi PC, LEAD ATTORNEY, Phoenix, AZ; James J Kernell, Kyle D Donnelly, LEAD ATTORNEYS, Erickson Kernell Derusseau & Kleypas LLC, Leawood, KS.

For Diamondback Drugs of Delaware LLC, a Delaware limited liability company, Michael R Blaire, Rory J Albert, Defendants: Gregory Phillip Sitrick, Isaac Scott Crum, LEAD ATTORNEY, Quarles & Brady LLP - Phoenix, AZ, Phoenix, AZ.

ORDER

H. Russel Holland, United States District Judge.

Motion to Dismiss

Defendants move to dismiss plaintiff's complaint.[1] This motion is opposed.[2] Oral argument was requested and has been heard.

Background

Plaintiff is Eaton Veterinary Pharmaceutical, Inc. Defendants are Diamondback Drugs of Delaware, LLC; Diamondback Drugs, LLC; Michael R. Blaire; and Rory J. Albert. Blaire and Albert are alleged to have founded the two corporate defendants, which are alleged to " own and operate a veterinary pharmacy." [3]

Plaintiff is the owner of U.S. Patent No. 6, 930, 127.[4] The invention that is patented " comprises the administration of a non-aqueous substance to an animal's affected eye to treat ophthalmic disease, wherein the non-aqueous substance contains a chemical called tacrolimus." [5] Patent '127 contains three method claims.[6] Claim 1 is an independent claim and claims 2 and 3 depend on Claim 1.[7] Claim 1 is

[a] method of treating pannus in canines having said disease and comprising the steps of:
a) providing a quantity of a composition consisting essentially of an effective amount of tacrolimus in a pharmaceutically acceptable non-aqueous lubricant vehicle; and
b) administering a quantity of said composition to the third eyelid of an affected canine.[8]

Plaintiff alleges that defendants have infringed Patent '127 " under 35 U.S.C. § 271 (b), (c) by inducing [their] customers to use a method that infringes one or more of the claims of the Patent, and by contributing to [their] customers' use of a method that infringes one or more claims of the Patent." [9] Plaintiff alleges that defendants' infringement is " deliberate and willful." [10] Plaintiff alleges that " [o]n July 30, 2013, a cease and desist letter along with a copy of the Patent was sent to Michael R. Blaire, CEO of Diamondback Drugs of Delaware, and Diamondback Drugs." [11] Plaintiff alleges that despite being put on notice on July 30, 2013, that they were infringing Patent '127, defendants " continued to infringe the Patent...." [12]

On June 2, 2014, plaintiff commenced this action in which it asserts a claim for patent infringement and a claim ...


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