TRIS PHARMA INC v. ACTAVIS LABORATORIES FL INC (2019)

ON PETITION FOR PANEL REHEARING

ORDER

Actavis Laboratories FL, Inc. petitions for panel rehearing of this court’s November 20, 2018 opinion, asking the panel to “eliminate [a] factual error from its decision to ensure that the district court has a proper understanding of what issues it must address on remand.” Specifically, Actavis directs us to a passage of our opinion on pages 13 and 14 (including footnote 4) that discusses the district court’s incomplete analysis of the Biederman article and concludes that the district court never cited a particular passage of Biederman in its decision. Actavis points out that the Biederman article is cited on page 44 of the district court’s decision (J.A. 47) and requests that we amend our decision to take this fact into account.

To avoid any confusion as to our instruction to the district court on remand, we grant the petition for the limited purpose of amending our earlier opinion. The sentence beginning at page 13, line 21 is amended to read: “For instance, the district court never made explicit findings that Daytrana®, Concerta®, Metadate CD®, and/or Scicinski also teach a 45-minute onset of action and 12-hour duration of effect.” The sentence beginning in the second line of page 14 of Footnote 4 is amended to read: “However, the district court never cited this passage in its opinion as teaching both a 30-minute onset of action and a 12-hour duration of effect.”

Accordingly,

It Is Ordered That:

The petition is granted to the limited extent noted above. The court shall withdraw the opinion and judgment issued November 20, 2018, and issue a modified version of the opinion incorporating the amendments described above. A new judgment shall issue as of the date of issuance of the modified opinion.

Per Curiam.