In late August, we published our third annual ANDA Litigation Intelligence Report, covering important statistics and evaluating all stakeholders in Hatch-Waxman litigation, including attorneys, local counsel, law firms, generic and brand pharmaceutical companies, and judges. We have already covered the best-performing pharma companies in Patexia 152 and the top ANDA law firms in Patexia 153. This week we will cover some of the very best ANDA attorneys based on the performance and activity rankings from our 2022 report.
Our study covered a five-year period from July 1, 2017, through June 30, 2022, where we identified a total of 1,439 ANDA cases involving 1,531 unique patents. The Hatch-Waxman district court filings reached their highest point in 2018 and then started declining. This is a different trend from what we have seen in other areas of IP litigation. Patent litigation, in particular, has been increasing in recent years, driven by market growth, innovation, competition in several sectors, litigation funds, etc. On the other hand, ANDA litigation depends on the number of patented drugs that got FDA approval and entered the market by brand pharmaceutical companies. As analyzed in detail in Patexia 148 with the ANDA filing data from the first half of 2022, as well as the drugs expected to lose patent protection (ANDA Lateral Moves Patexia 151), we will likely see more litigation in the near future.
Our activity scores and rankings for all entities were developed based on all 1,439 cases, while 1,062 cases terminated from July 1, 2017, through June 30, 2022, which were the basis for our success and performance scores. The above chart shows the PACER classifications of these terminated cases and their associated number of unique patents. Data shows that a majority (696/1,062; 65.5%) of ANDA cases are dismissed for one reason or another, while a smaller proportion (292/1,062; 27.5%) go to a judgment of some kind. The remaining ~7% of cases are either statistical (54) or non-reportable (3) closings or transfers (17). Although showing some level of information regarding the termination of the case, many of the PACER classifications were not meaningful or informative enough with respect to the actual outcome. Ultimately we wanted to know: Which party came ahead out of the litigation? For this reason, we have manually reviewed the judgment statuses and determined the actual outcomes based on which side won the case. At the bottom of this article, you will find more details about our ranking methodology.
During the period of our study, 1,857 attorneys participated in one or more of the 1,439 ANDA cases. Out of this number, 1,540 attorneys were identified as lead counsel; the remainder were local counsel, which had a separate section in our ANDA Litigation Intelligence Report. Out of the total of 1,540 lead attorneys, 986 attorneys represented plaintiffs, while 767 represented the defendants in ANDA cases. In the following table, you will find a list of some of the very best ANDA attorneys, earning their mention either for their high activity or for their top performance (being named on this list means the attorney was in the top seven percent out of 1857 attorneys):
|Attorney||Law Firm||All Cases||Defendant Cases||Plaintiff Cases||Rank||Category|
|Michael J. Gaertner||Locke Lord|
|47||2||1||Defendant Activity Rank|
|Francis D. Cerrito||Quinn Emanuel Urquhart & Sullivan||69||1||69||3||Overall Activity Rank|
|Lance A. Soderstrom||Katten Muchin Rosenman|
|36||5||4||Defendant Activity Rank|
|Samuel T. Lockner||Carlson Caspers Vandenburgh & Lindquist, PA.||17||16||1||32||Defendant Performance Rank|
|Aziz Burgy||Axinn Veltrop & Harkrider|
|12||2||33||Defendant Performance Rank|
|Edgar H. Haug||Haug Partners||27||0||27||39||Plaintiff Performance Rank|
|Brandon M. White||Perkins Coie|
|15||3||41||Defendant Activity Rank|
|Wendy L. Devine||Wilson Sonsini Goodrich & Rosati||29||12||17||45||Defendant Performance Rank|
|Don J. Mizerk||Husch Blackwell LLP|
|12||1||66||Defendant Activity Rank|
|Scott J. Bornstein||Greenberg Traurig LLP||12||12||0||71||Defendant Activity Rank|
|Ryan Johnson||Fenwick & West LLP|
|1||16||108||Plaintiff Activity Rank|
|Michael E. Furrow||Kilpatrick Townsend & Stockton||14||0||14||137||Plaintiff Activity Rank|
The ANDA Intelligence Report 2022 covers several key statistics related to filing trends, most popular jurisdictions, IPC codes, as well as outcome analysis which makes the performance rankings possible. The complete rankings for all of the 1,439 ANDA attorneys and the rest of the ANDA stakeholders, including a separate section and rankings for the local counsel firms and attorneys, are provided in the report. These entities are very active in the New Jersey and Delaware district courts, where our data shows that more than 90% of ANDA cases were filed.
The ANDA Intelligence Report 2022 was our third report on Abbreviated New Drug Application cases, and we continue to use feedback provided by the valued ANDA community to improve our ranking methodology further.
Activity Score is based on the number of all ANDA cases filed while distinguishing if the company, attorney, or law firm involved in the case came from the Brand or the Generic side in order to provide separate category rankings. Most ANDA community members find that the recent cases are a better indicator of activity, so we slightly reduced the weight of the older cases. Therefore, an entity with 5 cases in 2022 ranks slightly higher than an entity with the same number of cases but distributed throughout the past five years. To avoid large gaps between the scores of different entities with more cases than the average, we calculated the activity score on a logarithmic scale. This ultimately makes the comparison between entities with different activity levels easier.
The Success Score was developed based on the outcomes of all terminated cases during the period of our study. As seen above, PACER offers different statuses for the terminated ANDA cases, which do not provide any information about the actual outcome of the case. After manually reviewing these statuses and finding the actual outcome of the case, we regrouped them and calculated the success scores, which you see summarized in the table below:
|Outcome||Plaintiff||Defendant||Plain. Atty/Firm||Def. Atty/Firm||Judge|
|Judgment - Defendant Wins|
|Judgment - Plaintiff Wins||1||0||1||0||1|
|Judgment - Settled||0.5||0.5||0.5||0.5||-|
|Judgment - Consolidated||-||-||--||-||-|
|Judgment - Outcome Pending||-||-||-||-||-|
|Dismissed - Settled||0.5||0.5||0.5||0.5||-|
|Dismissed - Voluntarily||-||-||-||-||-|
|Dismissed - Other||-||-||-||-||-|
|Transfer/Remand - MDL Transfer||-||-||-||-||-|
Success score alone is not ideal as, for example, one attorney with just one victory has a success score of 100% while another attorney with ten cases who has won nine, will have a success score of 90%. For this reason, we developed our Performance Score, calculated as a weighted average of Activity and Success scores. This additional score helps pharma companies to find out what they are exactly looking for: an attorney with extensive experience and also a high success rate overall. All of the attorneys with at least one terminated scoreable case during the past five years were included in our rankings.
In the following weeks, we will cover some of the top entities from the IPR Intelligence Report published in September. Next week, we will be publishing our annual CAFC Intelligence Report and our Patexia Insights will highlight some key findings from this report. Stay tuned!