Pharmaceutical Patent Litigation Increases Nearly 30 Percent in 2017: Lex Machina Releases Fourth Hatch-Waxman/ANDA Litigation Report

Tecfidera, Eliquis and Sensipar among the most litigated drugs in 2016 and 2017
Delaware ANDA filings surge 60 percent in 2017; New Jersey filings remain flat; Eastern District of Virginia filings plummet 90 percent

Menlo Park, CA — May 3, 2018  Lex Machina, a LexisNexis company and creator of the award-winning Legal Analytics® platform, today announced the release of its fourth annual Hatch-Waxman/ANDA Litigation Report. The report focuses on FDA Paragraph IV pharmaceutical patent litigation related to Abbreviated New Drug Applications (ANDAs) filed in U.S. district courts under the Hatch-Waxman Act, and Patent Trial and Appeal Board (PTAB) cases involving FDA Orange Book patents. It provides litigators with trends and data-driven insights for ANDA and PTAB filings and decisions made between January 1, 2016 and December 31, 2017. During this time, 741 ANDA cases and 196 PTAB pharmaceutical petitions were filed, while 843 ANDA cases and 246 PTAB pharmaceutical trials were completed.

Among the report’s key findings is that district court ANDA case filings have rebounded nearly 30% over last year, from 324 cases in 2016 to 417 cases in 2017, but remain slightly below the 2015 record high of 475 cases.

The District of Delaware (D. Del.) and the District of New Jersey (D.N.J.) remained the top two venues for ANDA cases. While new case filings in D.N.J. were flat in 2017 (111 cases, down from 112 in 2016), D. Del. filings surged 60%, from 151 cases in 2016 to 241 cases in 2017. The next leading venue, the Eastern District of Virginia, saw a dramatic reduction in new case filings, from 17 cases in 2016 to two cases in 2017 – a decline of more than 90%.

In Delaware, the 2017 retirement of Judge Sue Robinson and the fall 2018 planned retirement of Judge Gregory Sleet, both of whom took senior status in 2017, leaves only two non-senior members – Judges Leonard Stark and Richard Andrews – to handle all cases. Despite the shifts on the Delaware bench and a greater proportion of ANDA cases, the median time to trial in D.Del. (731 days) was faster than that of D.N.J. (795 days). However, ANDA cases tried during 2016-2017 reached termination faster in D.N.J. (271 days) than in D.Del. (484 days).

“Lex Machina’s latest Hatch-Waxman/ANDA Litigation Report provides pharmaceutical companies and their law firms with invaluable, data-driven insights about the legal matters, key participants, case timings and resolutions that can shape or reshape business and legal strategies,” said Owen Byrd, Chief Evangelist and General Counsel, Lex Machina. “It also explores trends pertaining to top ANDA judges, parties and law firms, which can help litigators prepare legal strategies, select the best outside counsel and forecast litigation costs.”

The Hatch-Waxman/ANDA Report draws on a combination of litigation data from the Lex Machina’s Legal Analytics platform and Orange Book data published by the FDA on ANDA applications and related patents. Together with traditional research and intuition gained from experience, the report’s insights can provide litigators with a distinct advantage over their competition.

Other facts and report findings:

  • In combined 2016/2017 cases, the most litigated drugs were Tecfidera (32 cases), followed by Eliquis (26 cases), and Sensipar (22 cases).
  • The top five plaintiffs in combined 2016/2017 ANDA cases include Eli Lilly (42 cases), Pfizer (42 cases), Sanofi-Aventis (35 cases), Allergan (32 cases) and Bristol-Myers Squibb (32 cases).
  • The top five defendants in combined 2016/2017 ANDA cases include Teva Pharmaceuticals USA and Teva Pharmaceutical Industries (73 and 45 cases respectively), Mylan Pharmaceuticals (46 cases), Apotex (44 cases) and Aurobindo Pharma USA (40 cases).
  • Only six ANDA cases terminated in 2016 or 2017 resulted in damages, including one case with patent damages in 2016 (Brigham and Women’s Hospital, Inc. et al v. Perrigo Company et al. for more than $10.2 million).
  • For ANDA cases terminated in 2016 and 2017, the majority were the result of a likely settlement (50% or 417 cases) or procedural resolution (18% or 155 cases). Claimants won their cases more often than claim defendants (25% or 208 cases vs. 7% or 62 cases, respectively). In such cases, consent judgment was the most prevalent case resolution for both claimants and claim defendants (18% and 3% respectively), followed by trial (6% and 2%, respectively).
  • The median time to a Markman hearing was 468 days from the case filing date.
  • In 2016/2017, 246 PTAB trials challenging 235 Orange Book patents were completed, with 151 trials resulting in a patent owner win, 42 resulting in a petitioner win and one resulting in a partial win with mixed claim findings, and the remaining 52 cases were merged into other trials.

To request a copy of the full report, please register here.

About Lex Machina
Lex Machina’s award-winning Legal Analytics® platform is a new category of legal technology that fundamentally changes how companies and law firms compete in the business and practice of law. Delivered as Software-as a-Service, Lex Machina provides strategic insights on judges, lawyers, parties, and more, mined from millions of pages of legal information. This allows law firms and companies to predict the behaviors and outcomes that different legal strategies will produce, enabling them to win cases and close business.

Lex Machina’s Legal Analytics was named “Best Legal Analytics” by readers of The Recorder in 2014, 2015 and 2016, and received the “Best New Product of the Year” award in 2015 from the American Association of Law Libraries. The company was named a “Legal A.I. Leader” by The National Law Journal in 2018.

Based in Silicon Valley, Lex Machina is part of LexisNexis, a leading information provider and a pioneer in delivering trusted legal content and insights through innovative research and productivity solutions, supporting the needs of legal professionals at every step of their workflow. By harnessing the power of Big Data, LexisNexis provides legal professionals with essential information and insights derived from an unmatched collection of legal and news content—fueling productivity, confidence, and better outcomes. For more information, please visit