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MERCK & CO., INC. v. TEVA PHARMACEUTICALS USA, INC.

No. 04-1005.

405 F.3d 1338 (2005)

MERCK & CO., INC., Plaintiff-Appellee, v. TEVA PHARMACEUTICALS USA, INC., Defendant-Appellant.

United States Court of Appeals, Federal Circuit.

April 21, 2005.

Attorney(s) appearing for the Case

John F. Lynch, Howrey Simon Arnold & White, LLP, of Houston, Texas, filed a combined petition for panel rehearing and rehearing en banc for plaintiff-appellee. With him on the petition were Nicolas G. Barzoukas and Richard L. Stanley. Of counsel on the petition were Paul D. Matukaitis, Edward W. Murray and Gerard M. Devlin, Merck & Co., Inc., of Rahway, New Jersey.

James Galbraith, Kenyon & Kenyon, of New York, New York, filed a response to the petition for defendant-appellant. With him on the response were Maria Luisa Palmese and William G. James, II.

William F. Lee, Wilmer Cutler Pickering Hale and Dorr LLP, of Boston, Massachusetts, filed an amicus curiae brief for the Pharmaceutical Research and Manufacturers of America. With him on the brief was John M. Golden. Of counsel on the brief was William G. McElwain, of Washington, DC.

Before MICHEL, Chief Judge, NEWMAN, MAYER, LOURIE, CLEVENGER, RADER, BRYSON, GAJARSA, LINN, DYK, and PROST, Circuit Judges.

NEWMAN and LOURIE, Circuit Judges, would rehear the appeal en banc.

LOURIE, Circuit Judge, with whom MICHEL, Chief Judge, and NEWMAN, Circuit Judge, join, dissents in a separate opinion.

SCHALL, Circuit Judge, did not participate in the vote.

ORDER

A combined petition for panel rehearing and rehearing en banc was filed by the Appellee, and a response thereto was invited by the court and filed by the Appellant.1

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