BASF AGRO B.V. et al v. CIPLA Limited et al

Filing 197

ORDER. ORDER regarding issues to be addressed at May 4, 2012 Hearing. Ordered by Judge Clay D. Land on 05/03/2012. (ajp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
BASF AGRO B.V.,
MERIAL LIMITED, and
MERIAL SAS,

*
*

Plaintiffs,

*

vs.

*

CIPLA LIMITED, et al.,

*

Defendants,

*

VELCERA, INC. and FIDOPHARM,
INC.,

CASE NO. 3:07-CV-125 (CDL)

*
*

Intervenors.
*
O R D E R
In order to focus the parties on the issues to be addressed
at the hearing scheduled for May 4, 2012, the Court makes the
following

observations.

The

purpose

of

the

hearing

is

to

address Velcera’s preliminary argument that the Court’s previous
Injunction and the applicable law do not authorize a finding of
contempt

against

developing,

Velcera,

manufacturing,

unless

packaging

Velcera’s
and

selling

conduct
of

its

of
“new

product” is done in a manner that “aids and abets” Cipla in the
violation of the Court’s previous Orders.

The Court expects the

parties’ arguments to address at a minimum the following:
1) How does the Court’s March 22, 2012 Order modify
its

June

21,

2011

Injunction?

The

Court

did

not

intend to modify the Injunction, and notes that the
phrase “From the date of the Court’s June 21, 2011
Order

going

forward,”

relates

to

Velcera

“selling,

causing to be sold, offering for sale, and causing to
be offered for sale in the United States veterinary
products. . . .”

It is not intended to make other

conduct that occurred prior to June 21, 2011, such as
concerted product development, irrelevant.
clear

from

the

basic

grammatical

That seems

structure

of

the

sentence.
2) Velcera suggests in its briefing that a violation
of the Court’s Orders can only occur for the sale of
products

that

it

has

developed

AND

that

it

has

manufactured AND that it has packaged in concert with
Cipla,

which

development,

manufacture

AND

packaging

all occurred after June 21, 2011.

Yet, this appears

inconsistent

structure

with

the

grammatical

of

the

Court’s Orders, as discussed above, and also ignores
the

fact

separates

that
the

the

Court’s

phrases

March

“developed,”

22,

2012

Order

“manufactured,”

“packaged” with the combined conjunction “and/or” and
not simply with “and.”

2

3) Does the Court’s Injunction prevent Velcera from
selling a product that is not colorably different from
the

product

that

that

product

prior

to

packaged,

the

was

Court

previously

“developed”

June

21,

and

2011,

sold

by

in

but

concert

it

Velcera

enjoined,

was

with

if

Cipla

manufactured,

independent

connection with Cipla after June 21, 2011?

of

any

And along

these same lines, what is the standard for determining
whether the “new product” was “developed” in concert
with Cipla?
4) What are the legal limits on the application of the
Court’s Injunction under the principles enunciated in
Additive
Flowdata,

Controls
Inc.,

96

&

Measurement
F.3d

1390

Systems,

(Fed.

Cir.

Inc.

v.

1996)

to

conduct that may be found to be partly in concert with
Cipla

and

conduct

that

independent of Cipla?
Can

the

fruit

of

may

be

found

to

be

partly

Or to state it another way:

contumacious

conduct,

which

was

originally planted by the aider and abettor in concert
with its fellow contumacious party who it assisted,
later be harvested solely by the aider and abettor as
long as the original contumacious party, who the aider

3

and

abettor

assisted,

has

no

involvement

in

the

subsequent harvest?
After these issues are resolved at the hearing on May 4,
2012,

the

Court

hearing

is

hearing

would

will

necessary.
address,

then

determine

The

Court

among

other

whether

an

contemplates
issues,

evidentiary
that

whether

such
the

a

new

Velcera product is colorably different from the enjoined product
and

whether

the

new

product

was

developed,

manufactured,

packaged and/or sold in concert with Cipla.

IT IS SO ORDERED, this 3rd day of May, 2012.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

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