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YAMANOUCHI PHARMACEUTICAL v. DANBURY PHARMACAL

No. 99-1521.

231 F.3d 1339 (2000)

YAMANOUCHI PHARMACEUTICAL CO., LTD., Plaintiff-Appellee, and Merck & Co., Inc., Plaintiff-Appellee, v. DANBURY PHARMACEUTICAL, INC., Schein Pharmaceutical, Inc., and Marsam Pharmaceuticals, Inc., Defendants-Appellants.

United States Court of Appeals, Federal Circuit.

Rehearing and Rehearing Denied December 14, 2000.

Attorney(s) appearing for the Case

Robert L. Baechtold, Fitzpatrick, Cella, Harper & Scinto, of New York, New York, argued for plaintiff-appellees. With him on the brief were Hugh C. Barrett, Brian V. Slater, William E. Solander, and Amr O. Aly. On the brief for Merck & Co., Inc., were Paul D. Matukaitis and William Krovatin, of Merck & Co., Inc., of Rahway, New Jersey. Also on the brief for Merck & Co., Inc., were John F. Lynch, Nicolas G. Barzoukas, and Gerard M. Devlin, Jr., Arnold, White & Durkee, of Houston, Texas.

William A. Alper, Cohen, Pontani, Lieberman & Pavane, of New York, New York, argued for defendants-appellants. With him on the brief were Thomas C. Pontani, Michael C. Stuart, Myron Cohen, Julia S. Kim, and Martin B. Pavane.

James F. Hurst, Winston & Strawn, of Chicago, Illinois, for amicus curiae National Pharmaceutical Alliance. Of counsel was Christine J. Siwik.

Before NEWMAN, RADER, and GAJARSA, Circuit Judges.

Rehearing and Rehearing En Banc Denied December 14, 2000.

RADER, Circuit Judge.

On a motion for judgment as a matter of law (JMOL), the United States District Court for the Southern District of New York upheld the validity of claim 4 of U.S. Patent No. 4,283,408 (the '408 patent) in favor of Yamanouchi Pharmaceutical Co., Ltd. and Merck & Co., Inc. (collectively, Yamanouchi). See Yamanouchi Pharm. Co. v. Danbury Pharmacal, Inc.,

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