Filing of Second ANDA was not Enjoined in Prior Suit, and Thus was not Contempt

Abbott Laboratories v. Torhpharm, Inc., [2007-1019] (October 11. 2007)[MICHEL, Dyk, Otero] The Federal Circuit reversed a contempt finding against because the conduct at issue was not within the express terms of the injunction.
SIGNIFICANCE: If the filing of a second ANDA is not specifically enjoined, then the filing of a second ANDA is not contempt.
BRIEF: After losing a prior infringement action, defendants filed a seceond ANDA, and Abbott brought a contempt action. The Federal Circuit rejected defendant's argument that the infringement by filing an ANDA was only a "technical" infringement. The Federal Circuit also rejected the challenge that considering the infringement question in a contempt proceeding was inappropriate. However, the Federal Circuit said that before entering judgment in a contempt proceeding, the district court must address two questions: (1) whether a contempt proceeding is appropriate (i.e., is the accused product more than a colorable different from the previously adjudicated product), and (2) whether the accused product infringes the claims of the asserted patent. The Federal Circuit found that holding a contempt proceeding was within the district court's discretion, and turned to the question of whether the finding of contempt was appropriate LOF: As with any other legal instrument, interpretation of the terms of an injunction is a question of law we review de novo. The Federal Circuit held that the finding of contempt was in error, because defendant did not make, use or sell in the U.S: "there is no evidence here that Apotex actually did so. Rather, it is undisputed that Apotex’s actions in attempting to design around the Abbott patent claims occurred outside the United States. " The Federal Circuit noted that the filing of the ANDA was an infringement, but not one prohibited by the injunction.