Full opinion text
ORDER (1) GRANTING DEFENDANT ABBOTT LABORATORIES’ MOTION FOR SUMMARY JUDGMENT ON SHERMAN ACT SECTION 2 (AND ANALOGOUS) CLAIMS; AND (2) DENYING PLAINTIFF KAISER FOUNDATION HEALTH PLAN INC.’S MOTION FOR SUMMARY JUDGMENT ON SHAM LITIGATION SEITZ, District Judge. THIS CAUSE is before the Court on Defendant Abbott Laboratories’ (“Abbott”) Motion for Summary Judgment on Sherman Act Section 2 (and Analogous) Claims and Kaiser Foundation Health Plan Inc.’s (“Kaiser”) Motion for Summary Judgment on Sham Litigation. These are essentially cross motions for summary judgment. The Court has considered the motions, responses, replies, supporting exhibits, and oral argument of counsel. Having considered the undisputed material facts in the light most favorable to Plaintiffs, the Court concludes that no genuine issue of material fact exists for trial on the Section Two and analogous claims. Therefore, on these claims, Defendant Abbott is entitled to summary judgment as a matter of law, and Plaintiff Kaiser’s Motion must be denied. There are five grounds for granting Abbott’s motion. First, Plaintiffs have failed to show that any of the seventeen patent infringement law suits in question was objectively baseless. Second, even assuming that Plaintiffs could establish that some of these actions were objectively baseless, they did not, and apparently cannot, proffer any admissible evidence of a subjective bad-faith intent to abuse the judicial process in violation of the Sherman Act. Third, even viewing the seventeen lawsuits as a serial pattern of baseless anti-competitive actions filed automatically and without probable cause, the Court must find as a matter of law, based on the record evidence, that Defendant did not lose its Noerr-Pennington immunity because there was a legal basis for filing each of these lawsuits and a significant percentage of the suits were successful. Fourth, excluding the patent infringement lawsuits related to the ’207 patent, the remaining lawsuits concluded prior to the generic drug competitor receiving tentative Food and Drug Administration (“FDA”) approval for its generic bioequivalent drug. Thus, there is only speculation, rather than evidence, that Abbott’s filing of these lawsuits caused the alleged antitrust injury, namely, the prevention of generic market entry. Finally, in connection with the Walker Process claim regarding the allegedly fraudulent procurement of the ’207 patent, there is no record evidence of fraud or an attempt to commit fraud to procure the patent. Therefore, the Court will grant summary judgment in favor of Defendant Abbott on the Section Two and analogous state claims. Factual Background I. Nature of the Action This multi-district antitrust litigation (“MDL”) originates at the intersection of antitrust and patent law. At its core, this case revolves around Abbott’s attempts to protect its patents’ exclusivity with respect to the brand name drug Hytrin, and the competing efforts of generic manufacturers to develop and launch bioequivalent drugs for entry in the terazosin hydrochloride market. Between May 31, 1977, and August 13, 1999, pursuant to several patents, Abbott exclusively manufactured and marketed terazosin hydrochloride under the brand name of Hytrin. Hytrin is a drug prescribed for the treatment of high blood pressure and benign prostatic hyper-plasia (“BPH”), an enlargement of the prostate gland that surrounds the urinary canal. Hytrin proved to be a lucrative drug for Abbot; for example, in 1998, Hyt-rin generated $540 million in sales which accounted for more than twenty percent of Abbott’s sales of pharmaceutical products in the United States that year. Geneva Pharmaceuticals Inc. (“Geneva”), Zenith Goldline, Inc. (“Zenith”) — now known as IVAX Pharmaceuticals, Inc. (“IVAX”)— and other generic drug manufacturers developed generic versions of Hytrin for sale in the United States to compete for the Hytrin market. Whereas the first generic drug manufacturer, Geneva, began the regulatory process to enter the market in January 1993, generic entry only occurred in August 1999. Generic market entry not only provides less expensive drugs for consumers, but also eliminates a brand name drug company’s patent monopoly. Plaintiffs Kaiser, Individual Direct Purchasers, Indirect Purchaser Class Plaintiffs, and State Plaintiffs (collectively, “Plaintiffs”) sued Defendant Abbott alleging, inter alia, claims under Section Two of the Sherman Act (“Section Two”) and analogous state laws for monopolization and attempted monopolization. Plaintiffs’ Section Two claims have two bases. The first basis is the allegation . that Abbott filed seventeen “sham” patent infringement lawsuits to delay market entry of competing generic bioequivalent drugs for Hytrin and thus illegally maintained Abbott’s patent monopoly beyond the life of its patents. Second, Plaintiffs claim that Abbott fraudulently procured one of its Hytrin patents, the ’207 patent, which allowed it to maintain a monopoly on the terazosin hydrochloride market. To place the patent infringement litigation at issue in context, it is necessary to set out the pertinent framework for drug regulation in the United States and then discuss the parties’ undisputed underlying material facts as to Abbott’s patents, the generic drug manufacturers’ applications to market their generic bioequivalent drugs, and the patent lawsuits themselves. II. The FDA Regulatory Framework Under Hatch-Waxman A drug patent gives its owner the right to exclude others from making, using, or selling the drug in the United States for the duration of the patent. However, the FDA regulates the sale of drugs in the United States pursuant to the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 301, et seq. Thus, drug companies must apply for and obtain approval from the FDA before they can sell a drug in the United States. S. ¶¶ 1-2. To secure FDA approval to market a new drug, a pharmaceutical company must first file a New Drug Application (“NDA”) with the FDA and may not market a new drug until the NDA is approved. S. ¶ 3. The NDA applicant must demonstrate to the FDA that the new drug is safe and effective for its proposed use(s). S. ¶ 3. New drugs that are approved and marketed through the NDA-approval process, such as Hytrin, are generally referred to as “brand-name” or “pioneer” drugs. S. ¶ 4. The pharmaceutical companies that develop new drugs, such as Abbott, are generally referred to as “brand name,” “innovator,” or “pioneer” companies. S. ¶ 4. In 1984, Congress amended the laws governing pharmaceutical sales and enacted what is commonly known as the Hatch-Waxman Act (“Hatch-Waxman”). S. ¶ 5. This Act established an abbreviated process that shortened the time and effort needed to obtain FDA market approval for generic copies of previously approved pioneer drug products, yet also sought to guard against infringement of patents relating to pioneer drugs. As part of the legislative scheme to balance these competing interests, Hatch-Waxman provides that once the FDA approves a new drug, it is listed in a FDA publication called the “Orange Book” which identifies both the brand name and the chemical or generic name for the drug. S. ¶ 6. The FDA also lists in the Orange Book any patents owned by the innovator that “claim the drug” or “which claim a method of using such drug” and “with respect to which a claim of patent infringement could reasonably be asserted if a person not licensed by the owner engaged in the manufacture, use, or sale of the drug,” along with the expiration date of such patent(s). S. ¶ 6. On the other side of the balance, Hatch-Waxman provides that five years after the FDA has approved a new drug, a generic pharmaceutical company may seek approval to sell a generic version of the drug by Filing an Abbreviated New Drug Application (“ANDA”). S. ¶ 7. A generic pharmaceutical manufacturer, such as Geneva, may not market a generic drug until the FDA approves the ANDA for that company’s generic drug and must also meet certain validation requirements before it can legally market its product. S. ¶ 7. To secure FDA approval for an ANDA, a generic manufacturer must demonstrate that the proposed generic drug is the bioequivalent of the corresponding brand-name drug. S. ¶ 8. When filing an ANDA, FDA regulations require the ANDA applicant to certify that either: (I) no patent is listed in the Orange Book relevant to its ANDA; or (II) the patent listed in the Orange Book has expired; or (III) the listed patent will expire on a particular date, and the ANDA filer does not seek FDA approval before that date (a “Paragraph III Certification”); or (IV) the listed patent is invalid or will not be infringed by the manufacture, use, or sale of the proposed generic drug (a “Paragraph IV Certification”). S. ¶ 9. If the ANDA filer makes a Paragraph III Certification, the ANDA cannot receive final approval until the expiration of the relevant patent(s). S. ¶ 10. If the ANDA filer makes a Paragraph IV Certification, however, it is required to provide a notice to the innovator company of the certification, including “a statement of the factual and legal basis of the applicant’s opinion that the patent is not valid or will not be infringed.” S. ¶ 11. The Hatch-Waxman and FDA regulations do not require the ANDA applicant to provide a sample of its proposed generic product. S. ¶ 11. During the time period at issue in this case, if the generic company filed a Paragraph IV Certification and the innovator company filed a patent infringement lawsuit in federal court within forty-five days of the innovator company’s receipt of the generic company’s Paragraph IV Certification, such a lawsuit would trigger a “30 month stay” provision. S. ¶ 12. Under this provision, the FDA was prohibited from granting final approval for the ANDA until: (1) the thirty (30) months elapsed or (2) a “court decision” relating to the specific ANDA held the patent invalid or uninfringed, whichever occurred first. S. ¶ 12. Until July 2000, FDA regulations provided that a “court decision,” in the context of the 30 month stay, meant a decision of an appellate court or a decision of a district court from which no appeal was taken. S. ¶ 15. However, during the 30 month stay period, the FDA may grant “tentative approval” to an ANDA applicant if the FDA determines that the ANDA would otherwise receive final approval but for the 30 month stay. S. ¶ 14. District courts are authorized to extend or shorten the 30 month stay under certain circumstances. S. ¶ 12. A dismissal of the Hatch-Waxman infringement lawsuit lifts the 30 month stay. A patent infringement action filed after the Act’s forty-five day window does not trigger a 30 month stay. III. Abbott’s Patents for Terazosin Hydrochloride Abbott holds a number of patents permitting it to manufacture and market drugs containing the chemical compound terazosin hydrochloride, and there are no crystalline forms of terazosin hydrochloride other than those claimed or disclosed in the Abbott patents. S. ¶ 50. These patents include the following: A. ’894 Patent Abbott is the assignee of the 4,026,894 (’894) patent for terazosin hydrochloride. The ’894 application was filed on October 14, 1975. The patent was issued on May 31, 1977, was listed in the Orange Book prior to 1993, and expired on May 31,1994. Abbott’s Hytrin tablets contain terazosin hydrochloride dihydrate, which means the crystalline arrangement contains two water molecules for every terazosin molecule. No generic pharmaceutical company has challenged the validity of the ’894 patent or sought to market a generic tera-zosin hydrochloride product before the expiration of the ’894 patent. S. ¶ 41. B. ’097 Patent Abbott is also the assignee of the 4,112,-097 (’097) patent which covers a pharmaceutical composition of dihydrate terazosin hydrochloride for treating hypertension and a method for treating hypertension with terazosin hydrochloride. The application for this patent was filed on January 21, 1977, and was a divisional of the application for the ’894 patent. The ’097 patent issued on September 5,1978, and was originally set to expire on September 5, 1995. However, on November 16, 1995, in patent infringement litigation, Abbott asserted that the Uruguay Round Agreements Act (“URAA”) extended the term of the ’097 patent through January 21, 1997. On March 14, 1996, the Northern District of Illinois held that the URAA extended the term of the ’097 patent only through October 14, 1995. See Abbott Labs. v. Novopharm Limited, 1996 WL 131498 (N.D.Ill. Mar. 14, 1996). The Federal Circuit affirmed the lower court decision that the ’097 patent expired on October 14, 1995. See Abbott Labs. v. Geneva Pharms. Inc., 104 F.3d 1305 (Fed.Cir.1997). No generic pharmaceutical company challenged the validity of the ’097 patent or sought to market a generic terazo-sin hydrochloride product before October 14, 1995. However, Geneva, Novopharm, and Warner-Chilcott (“Warner”) sought approval for their generic products and filed ANDAs before January 21, 1997, the date which Abbott claimed to be the expiration date of the ’097 patent, S. ¶¶ 42^44. C. ’532 Patent The 4,251,532 (’532) patent, which is also assigned to Abbott, covers not only the dihydrate of terazosin hydrochloride, but also the pharmaceutical composition containing the dihydrate of terazosin hydrochloride, and a method of treating hypertension with the dihydrate of terazosin hydrochloride. The application for the ’532 patent was filed on September 24, 1979. The patent issued on February 17, 1981, and it expired on February 17, 2000. The ’532 patent was listed in the Orange Book prior to 1993, and no generic pharmaceutical company challenged the validity of the ’532 patent. S. ¶ 45. D. ’615 Patent Abbott’s 5,294,615 (’615) patent is for an anhydrous crystalline polymorph of tera-zosin hydrochloride with a certain x-ray diffraction pattern (Form II), a pharmaceutical composition comprising a therapeutically effective amount of the crystalline polymorph in combination with a pharmaceutically acceptable carrier, and methods of treating hypertension and BPH. The application for the ’615 patent was filed on July 13, 1993, the patent issued on March 15, 1994, and it expires on March 15, 2011. The ’615 patent was listed in the March 1995 supplement to the Orange Book. S. ¶ 46. E. ’095 Patent Abbott is the assignee of the 5,412,095 (’095 patent) patent on an anhydrous crystalline polymorph of terazosin hydrochloride with a certain x-ray diffraction pattern (Form III), and a methanol solvate of terazosin hydrochloride. This methanol solvate can be used as an intermediate in producing Form IV terazosin hydrochloride (claimed by the ’207 patent described below). The application for the ’095 patent was filed on May 20, 1994, it issued on May 2, 1995, and it expires on April 29, 2013. The ’095 patent was listed in the Orange Book on May 8, 1995. S. ¶¶ 47-48. F. ’207 Patent Lastly, Abbott is the assignee of the 5,504,207 (’207) patent which claimed an anhydrous crystalline polymorph of terazo-sin hydrochloride with a certain x-ray diffraction pattern (Form IV) and a process for the preparation of terazosin hydrochloride dihydrate using Form IV terazosin hydrochloride as an intermediary. The application for the ’207 patent was filed on October 18,1994, it issued on April 2,1996, and it was submitted to the FDA for listing in the Orange Book on April 2, 1996. S. ¶ 49. IV. ANDAs for Terazosin Hydrochloride Products Generic drug manufacturers filed ANDA certifications challenging some of these patents. These companies included: Geneva, Novopharm, Zenith, Invamed, Ler-runon, Warner, and Mylan. The ANDAs these companies filed were the only ones filed for generic terazosin hydrochloride products. S. ¶ 28. A. Geneva Geneva filed ANDA 74-315 on January 12,1993 for terazosin hydrochloride tablets using Form II anhydrous terazosin. It later switched to Form IV anhydrous tera-zosin. Geneva obtained tentative approval on June 17, 1997, and final approval on December 31, 1998. Geneva came to market with its tablet product in May 2001. S. ¶29. Geneva also filed ANDA 74-823 on December 29, 1995, for terazosin hydrochloride capsules employing Form IV anhydrous terazosin and obtained final approval on March 30, 1998. Geneva came to market with its generic capsules on August 13,1999. S. ¶ 30. B. Novopharm Novopharm filed ANDA 74-446 on December 16, 1993, for terazosin hydrochloride tablets, and obtained tentative FDA approvals on November 26, 1996, and December 29, 1999. It received final approval on May 18, 2000. Novopharm never came to market with a terazosin hydrochloride product and did not file any other ANDAs for terazosin hydrochloride. S. ¶ 31. C. Zenith On August 1, 1994, Zenith filed ANDA 74-530 for terazosin hydrochloride tablets. The proposed product used anhydrous Form II terazosin. Zenith refused to provide certifications to Abbott’s ’095 and ’207 patents on the ground that the patents had not been properly listed in the Orange Book. Zenith received a letter from the FDA dated July 8, 1997, stating that the FDA could riot approve Zenith’s application because of the absence of those certifications. Zenith subsequently provided those certifications and received tentative approval on August 14, 1998, and final approval on April 21, 2000. It never came to market with its tablet product. S. ¶ 32. Later, Zenith filed ANDA 75-614 on April 7, 1999, for terazosin hydrochloride capsules and obtained final FDA approval on January 30, 2001. Zenith, which by that time had changed its name to IVAX, came to market with terazosin hydrochloride capsules in February 2001. S. ¶33. D. Invamed On April 8, 1995, Invamed filed ANDA 74-657 for terazosin hydrochloride tablets. The proposed product used anhydrous Form IV terazosin. Invamed received tentative FDA approval on March 13,1997, and final approval on April 28, 2000. However, it never came to marker with a tera-zosin hydrochloride tablet product. S. ¶ 34. Invamed also filed ANDA 75-667 for terazosin hydrochloride capsules on July 8, 1999, received tentative FDA approval on August 20,1999, and final approval on July 28, 2000. Similarly, it never came to market with a terazosin hydrochloride capsule product. S. ¶ 35. E. Lemmon Lemmon filed ANDA 74-651 on May 3, 1995, for terazosin hydrochloride tablets, but Lemmon’s ANDA has not received either tentative or final FDA approval. S. ¶ 36. The proposed product used Form II anhydrous terazosin. F. Warner-Chilcott Warner filed ANDA 74-763 on September 29, 1995, for terazosin hydrochloride tablets, and this tablet ANDA has not received tentative or final FDA approval. S. ¶ 37. The proposed product used Form II anhydrous terazosin. Warner filed ANDA 75-317 on or about January 16, 1998 for terazosin hydrochloride capsules using Form IV terazosin. As with its proposed tablets, Warner’s capsule ANDA has not received tentative or final FDA approval. S. ¶ 38. G. Mylan On June 6, 1997, Mylan filed ANDA 75-140 for a 5 mg terazosin hydrochloride capsule only, and later amended its ANDA on February 6,1998, to include 1, 2, and 10 mg terazosin hydrochloride capsules. S. ¶ 39. Mylan obtained tentative FDA approval on September 28, 1998, and received final approval on all dosage forms on February 11, 2000. It came to market with its generic terazosin hydrochloride capsule in all four strengths on February 17,2000. S. ¶39. After being notified of each of these ANDA filings, Abbott filed seventeen patent infringement lawsuits against these companies which form the basis for Plaintiffs’ Section Two claims. The lawsuits are described below in chronological order. V. The Terazosin Hydrochloride Patent Infringement Lawsuits A. Geneva ’532 Lawsuit On January 12, 1993, Geneva notified Abbott of a Paragraph IV Certification with respect to the ’532 patent and asserted that its proposed generic product did not infringe the patent because the active ingredient in its product was anhydrous (“without water”) terazosin hydrochloride, while the ’532 patent claimed dihydrate (“with water”) terazosin hydrochloride. S. ¶ 51. Thereafter, on February 26, 1993, Abbott sued Geneva in the Northern District of Illinois alleging infringement of the ’532 patent under 35 U.S.C. § 271(e)(2)(A). S. ¶ 52. Geneva’s process for manufacturing its anhydrous generic tablet product initially used water; after Abbott received and tested samples of Geneva’s product, Abbott informed Geneva that it had detected the presence of the dihydrate terazosin claimed by the ’532 patent. S. ¶ 53. On August 27, 1993, Geneva’s counsel informed Abbott’s counsel that to end the controversy between the parties relating to the alleged infringement of the ’532 patent, Geneva had modified the process for manufacturing Geneva’s generic tablet product so it would no longer use water. S. ¶ 54. Geneva provided new samples of its generic product, which Abbott then tested. S. ¶ 54. On November 16, 1993, Abbott voluntarily dismissed its complaint without prejudice. S. ¶ 55. B. Geneva ’615 Lawsuit Based on the samples it received in the ’532 litigation, described above, on September 15, 1994, Abbott sued Geneva for the alleged infringement of the ’615 patent, which had issued in March 1994. S. ¶ 56; Tabacchi Aff. at ¶ 4. Geneva did not dispute that its proposed generic tablet product contained Form II terazosin hydrochloride claimed by the ’615 patent, but denied that the patent was valid or enforceable because the Form II had been on sale more than a year before Abbott applied for the ’615 patent. S. ¶ 57. In June 1995, Geneva informed Abbott that it had switched from Form II terazosin hydrochloride (the form claimed by the ’615 patent) to Form IV terazosin hydrochloride (the form which would be claimed by the ’207 patent), which was then unpatent-ed. S. ¶ 58. On July 17, 1995, after testing samples of Geneva’s tablet product and confirming that the samples did not contain Form II terazosin hydrochloride, Abbott voluntarily dismissed its complaint without prejudice. S. ¶ 59. C. Zenith ’615 Lawsuits On August 1, 1994, Zenith filed a Paragraph IV Certification ANDA for a generic terazosin hydrochloride tablet. On November 14, 1994, Abbott sued Zenith for infringement of the ’615 patent. S. ¶ 60. In response, Zenith moved to dismiss the action under Fed.R.Civ.P. 12(b)(6) on the ground that Abbott had not listed the ’615 patent in the Orange Book and, therefore, could not have a basis for an infringement action under 35 U.S.C. § 271(e)(2)(A). S. ¶ 61. Abbott countered that nothing in § 271(e)(2)(A) required a patent to be listed in the Orange Book before an infringement action could be brought. S. ¶ 62. On March 15, 1995, the district court granted Zenith’s motion and dismissed the case. S. ¶ 63; see Abbott Labs. v. Zenith Labs. Inc., 35 USPQ 2d 1161 (N.D.Ill.1995). In the month of the dismissal, Abbott listed the ’615 patent in the Orange Book and later, on June 5, 1995, sued Zenith again in the same court, alleging infringement of the ’615 patent. This new ease was assigned to the same judge who heard the prior ’615 case against Zenith. S. ¶ 64. As it had done a year earlier, Zenith again moved to dismiss this action under Fed. R.Civ.P. 12(b)(6) arguing, inter alia, that the patent listing was untimely. On September 28, 1995, the district court agreed, granted the motion, and dismissed the case. S. ¶¶ 65-66. However, the district court denied Geneva’s motion for attorney’s fees against Abbott. S. ¶ 67. The effect of the district court’s order was that Abbott could not sue Zenith for infringement of the ’615 patent until Zenith marketed a terazosin hydrochloride tablet containing Form II terazosin hydrochloride. Zenith never marketed a terazosin hydrochloride tablet. S. ¶ 68. D.Invamed ’5321’6151’095 Lawsuit Invamed notified Abbott on April 29, 1995, of a Paragraph IV Certification with respect to the ’532 patent and asserted that the active ingredient in its generic product was anhydrous terazosin, while the ’532 patent claimed dihydrate terazo-sin; thus, its generic product did not infringe on the ’532 patent. S. ¶ 69. However, Invamed did not certify with respect to the ’615 patent and prior to Abbott’s filing suit, Invamed had not provided Abbott with product samples for testing, despite Abbott’s request. S. ¶¶ 69-70. On June 13, 1995, Abbott sued Invamed alleging infringement of the ’532, ’615 and ’095 patents. S. ¶ 71. Abbott also sought to compel Invamed to certify with respect to the ’615 and ’095 patents, which had issued by that time. S. ¶ 71. On July 25, 1995, Invamed provided Abbott with samples of its proposed product, and Abbott tested the samples. S. ¶ 72. On September 12, 1995, Abbott proposed that the parties could resolve the suit if Invamed agreed to provide certifications with respect to the ’615 and ’095 patents, and Invamed agreed. S. ¶ 73. Thereafter, on October 17, 1995, Abbott voluntarily dismissed its complaint without prejudice. S. ¶ 74. E. Lemmon ’532 Lawsuit On May 3, 1995, Lemmon notified Abbott of its Paragraph IV Certification with respect to the ’532 patent, asserting, like Invamed, that its proposed generic product did not contain water and, therefore, did not infringe the ’532 patent. S. ¶ 75. Abbott asked, on May 10, 1995, for a sample of Lemmon’s product, but did not receive one. Thus, on June 22, 1995, Abbott sued Lemmon for infringement of the ’532 patent. S. ¶¶ 76-77. After Abbott filed suit, Lemmon provided product samples and stated that it would “not engage in the commercial manufacture, use or sale of generic terazosin hydrochloride as long as [the ’615] patent had not been found invalid or not enforceable.” S. ¶¶ 78-79. Therefore, on July 12, 1995, Abbott voluntarily dismissed its complaint without prejudice. S. ¶ 80. F. Geneva ’097/’095 and Novop-harm ’097 Lawsuits Geneva provided Abbott with a notice, dated October 5, 1995, of its Paragraph IV Certification on the ’097 patent and stated that it would seek approval to sell its proposed generic drug after October 14, 1995 (the date on which Geneva believed the patent expired), but before January 21, 1997 (the date on which Abbott contended the patent expired). S. ¶ 81. Also on October 5, 1995, Geneva notified Abbott of a Paragraph IV Certification with respect to the ’095 patent and stated that its product did not infringe the ’095 patent because it was using an anhydrous form of terazo-sin hydrochloride other than the form claimed in the ’095 patent (Form III). S. ¶ 82. In response, on November 16, 1995, Abbott sued Geneva for infringing both the ’097 and ’095 patents. However, on February 15, 1996, Abbott voluntarily dismissed its claim as to the ’095 patent. S. ¶¶ 83-84. Novopharm also provided Abbott with a notice dated December 20, 1995, of a Paragraph IV Certification with respect to the ’097 patent and claimed that the patent had expired. S. ¶ 85. On February 1, 1996, Abbott sued Novopharm for infringement of the ’097 patent. This case was consolidated with the Geneva ’097 suit on February 15, 1996. S. ¶ 86; Def.’s Tab B. Ex. 45 (Docket sheet for Novopharm ’097 case). The issue in the consolidated action was the expiration date of the ’097 patent. Abbott’s ’097 patent was originally scheduled to expire on September 5, 1995 (17 years from its date of issuance). However, as a result of the Uruguay Round Agreements Act of 1994 (“URAA”), the duration of American patents was extended from 17 years from date of issuance to 20 years from the date of filing of the patent application. S. ¶87. For patents already issued, such as the ’097 patent, the URAA provided that such patents would expire either 17 years from issuance or 20 years from filing, whichever patent period was longer. S. ¶ 87. The application for the ’097 patent was filed on January 21, 1977, and, thus, Abbott argued that the ’097 patent expired on January 21, 1997. S. ¶88. The URAA provided, however, that if a patent application referred to an earlier application, the 20-year term would run from the filing date of that earlier application. Geneva and Novopharm argued that because the ’097 patent application referred to the application for the ’894 patent which was filed on October 14, 1975, the ’097 patent expired on October 14, 1995. Abbott asserted that under the relevant effective date provision (URAA § 534(b)(3)), the rule concerning reference to an earlier-filed application did not apply to applications filed before January 1, 1996. S. ¶ 89. On March 14, 1996, the district court granted Novopharm’s and Geneva’s motions to dismiss Abbott’s claim for infringement of the ’097 patent and held that the patent had expired on October 14, 1995. S. ¶ 90; see Abbott Labs. v. Novopharm, Ltd., No. 96-C-611, 1996 WL 131498 (N.D.Ill. Mar. 14, 1996). Abbott appealed this decision. Novopharm sought expedited consideration of the appeal saying that it would suffer “irreparable harm” if it came to market before the Federal Circuit considered the issue and possibly reversed. S. ¶¶ 91-92. Abbott stipulated to an expedited appeal. S. ¶ 92. On January 14, 1997, the Federal Circuit affirmed the district court. S. ¶ 93; see Abbott Labs. v. Novopharm, Ltd., 104 F.3d 1305 (Fed.Cir.1997). G. Invamed ’095 Lawsuit On October 31, 1995, in connection with its April 8, 1995, ANDA, Invamed notified Abbott of a Paragraph IV Certification with respect to the ’095 patent, asserting that it did not infringe the ’095 patent because it was using an anhydrous form of terazosin hydrochloride other than the one claimed in the ’095 patent (Form III). S. ¶ 94. In response, on December 7, 1995, Abbott sued Invamed for infringement. S. ¶ 95. In April 1996, Invamed provided Abbott with a sworn statement that the active ingredient used in Invamed’s proposed product would be manufactured outside the United States. On May 10, 1996, Abbott voluntarily dismissed its complaint without prejudice. S. ¶¶ 96-97. H. Warner ’615/’097 Lawsuits Warner notified Abbott on December 15, 1995, of a Paragraph IV Certification with respect to the ’097 and ’615 patents. In the notice, Warner claimed that the ’097 patent had expired, and that Warner’s proposed tablet product contained an anhydrous form of terazosin hydrochloride other than the form claimed in the ’615 patent. S. ¶ 98. On January 26, 1996, Abbott filed suit against Warner for infringement of both the ’097 and ’615 patents. In June 1996, Warner changed its Paragraph IV Certifications as to both the ’097 and ’615 patents to Paragraph III Certifications. S. ¶¶ 99-100. On August 9, 1996, Abbott voluntarily dismissed its complaint. S. ¶ 101. I. Geneva Capsule ’615 Lawsuit Next, Geneva provided Abbott with a February 16, 1996, notice of a Paragraph IV Certification with respect to the ’615 patent and asserted that its proposed generic capsule product would not infringe the ’615 patent because it contained Form IV terazosin hydrochloride rather than the Form II claimed in the ’615 patent. S. ¶ 102. On March 27, 1996, Abbott sued Geneva for patent infringement. S. ¶ 103. After Abbott filed suit, Geneva provided Abbott with additional information regarding its terazosin hydrochloride capsules, and Abbott agreed to postpone Geneva’s time to answer while it considered this new information. S. ¶¶ 104-105. On May 8, 1996, Abbott voluntarily dismissed its complaint without prejudice. S. ¶ 106. J. Geneva, Novopharm, and In-vamed ’207 Lawsuits Abbott was issued the ’207 patent on April 2, 1996, and listed it in the Orange Book that same month. Geneva provided Abbott with two notices, both dated April 29, 1996, of Paragraph IV Certifications with respect to the ’207 patent which asserted that claims 1 through 3 of the patent were not infringed and that claim 4 of the patent was invalid under 35 U.S.C. § 102(b) (“on-sale bar”). S. ¶ 107. On June 4, 1996, Abbott sued Geneva regarding its tablet ANDA alleging infringement. S. ¶ 109. But Abbott failed to institute any litigation challenging Geneva’s capsule product. S. ¶ 108. While Geneva conceded that its terazosin hydrochloride tablet product contained Form IV terazosin hydrochloride as claimed by the ’207 patent, it denied that the patent was valid or enforceable. S. ¶ 110. Similarly, Novopharm notified Abbott in an August 8, 1996, notice of a Paragraph IV Certification with respect to the ’207 patent and stated that the patent was invalid under the on-sale bar. S. ¶ 111. On September 13, 1996. Abbott sued Novop-harm for infringement of the ’207 patent. This case was consolidated with the Geneva ’207 suit. S. ¶¶ 112-13. As with Geneva, Novopharm admitted that its product contained Form IV terazosin hydrochloride but denied that the ’207 patent was valid or enforceable. S. ¶ 113. On January 15, 1997, Geneva moved for summary judgment (as did Novopharm on January 22, 1997). Geneva and Novop-harm argued that claim 4 of the ’207 patent (the only claim of the patent asserted) was invalid under the on-sale bar, relying on sales .of anhydrous terazosin from the early 1990s which allegedly contained Form IV terazosin hydrochloride. These sales occurred more than one year before Abbott filed its application for the ’207 patent and involved anhydrous terazosin that Byron Chemical Company (“Byron”) bought from its overseas supplier and then sold to Geneva in the United States. The summary judgment motion was fully briefed by April 22, 1997. Abbott did not contest that these prior purchases included the same Form IV terazosin hydrochloride that Abbott claimed in its ’207 patent. However, Abbott argued that the buyers’ and seller’s alleged lack of knowledge of the existence of Form IV terazosin hydrochloride prevented the triggering of the on-sale bar. S. ¶¶ 114-115. While the Geneva/Novopharm lawsuits and motions for summary judgment were pending, Invamed provided a September 25, 1997, notice to Abbott of a Paragraph IV Certification with respect to the ’207 patent asserting, inter alia, that the on-sale bar invalidated the patent. S. ¶ 116. Abbott sued Invamed for patent infringement on October 28, 1997, in the same district court, and this case was consolidated with the Geneva and Novopharm ’207 suits. Id. at ¶ 117. Like the other generic manufacturers, Invamed did not dispute that its product contained Form IV terazo-sin hydrochloride claimed by the ’207 patent but denied the validity or enforceability of the ’207 patent. S. ¶ 118. On September 1, 1998, the district court granted summary judgment for Geneva, Novopharm and Invamed and held claim 4 of the ’207 patent (claiming Form IV tera-zosin hydrochloride) invalid because of the “on-sale” bar. Abbott Labs. v. Geneva Pharm., Inc., No. 96-C-3331, 1998 WL 566884, at *5 (N.D.Ill. Sept. 1, 1998). The remaining claims of the ’207 patent have not been challenged and remain in force. S. ¶ 119. Abbott appealed the district court’s decision to the Federal Circuit. After Abbott filed its appeal, the Supreme Court, on November 10, 1998, issued it opinion in Pfaff v. Wells Elec. Inc., 525 U.S. 55, 119 S.Ct. 304, 142 L.Ed.2d 261 (1998). On July 1, 1999, a panel of the Federal Circuit affirmed the district court and cited Pfaff in its opinion; it also cited several pre-P/aff Federal Circuit decisions. S. ¶ 122; see Abbott Labs. v. Geneva Pharm. Inc., 182 F.3d 1315 (Fed.Cir.1999). Rehearing was denied on August 6, 1999, the Federal Circuit’s mandate issued on August 12, 1999, and the United States Supreme Court denied certiorari on January 10, 2000. S. ¶122. K. Mylan ’207 Lawsuits Mylan also gave Abbott a Paragraph IV Certification with respect to the ’207 patent on July 11, 1997. This notice was limited to a 5 mg capsule product. S. ¶ 123. On August 1, 1997, Abbott sued Mylan for patent infringement. Mylan responded that its generic contained Form IV terazosin hydrochloride but argued that the ’207 patent was not valid or enforceable due to the on-sale bar. S. ¶¶ 124-25. On February 9, 1998, Mylan informed Abbott that it had submitted an amendment to its ANDA to provide for the addition of three new dosage strengths and incorporated its prior Paragraph IV Certification by reference. S. ¶ 126. In response, on March 2, 1998, Abbott sued Mylan for patent infringement covering the new dosage strengths, and this case was consolidated with the pending Mylan ’207 suit regarding the 5 mg capsule. S. ¶ 127. After the district court in the Geneva, Novopharm, and Invamed suits held the ’207 patent invalid, Mylan moved for summary judgment arguing that Abbott was collaterally estopped from relitigating the issue of validity. S. ¶ 128. The My-lan ’207 district court agreed and, on March 4, 1999, granted Mylan’s motion for summary judgment. S. ¶ 128. Abbott appealed, but on October 4,1999, the Federal Circuit affirmed the district court’s decision. S. ¶ 128. L. Warner ’207 Lawsuit Abbott also challenged Warner’s ’207 Paragraph IV Certification ANDA. S. ¶ 129. On March 12, 1998, Warner informed Abbott of this ANDA, and asserted, as did the other generic manufacturers, that the ’207 patent was invalid under the on-sale bar. S. ¶ 129. Abbott sued this generic competitor on April 6, 1998, for patent infringement, and like the other generic manufacturers, Warner admitted that its generic product contained Form IV terazosin hydrochloride but claimed that the ’207 patent was invalid and unenforceable. S. ¶¶ 130-31. Following the Geneva/Invamed/Novop-harm district court’s holding that the ’207 patent was invalid, Warner moved for summary judgment based on collateral es-toppel as to the issue of the ’207 patent’s validity. S. ¶ 132. The district court granted Warner’s motion on November 19, 1998; Abbott appealed and, on November 24, 1999, the Federal Circuit affirmed. S. ¶ 132. M. Abbott’s Motive for the Lawsuits Plaintiffs sought discovery of the evidence and facts Abbott considered before filing these lawsuits, but Abbott refused to disclose such information based on the attorney-client privilege. Plaintiffs have asked the Court to draw a negative inference of Abbott’s intent based on the invocation of the attorney-client privilege. In the Summer of 1999, Abbott’s CEO circulated an internal memorandum which stated: “I’d like to take this opportunity to recognize the truly outstanding work of our legal team, which successfully defended Hytrin’s patent protection against challenge for nearly four years.” Def.’s Ex. Tab C-27. Plaintiffs claim that this statement is evidence that the purpose of the lawsuits was to extend illegally Abbott’s patent monopoly by instituting sham lawsuits solely to trigger the Hatch-Waxman 30 month stays. VI. Facts Regarding Walker Process Claim Apart from the “sham litigation” claim, Plaintiffs have also sued Abbott for fraud on the United States Patent and Trademark Office (“PTO”) in the procurement of the ’207 patent. In March 1993, the Sumi-ka Fine Chemical Co. published a Japanese Patent Application, No. 08-78352 (the “Sumika reference”) which disclosed seven crystal forms of terazosin hydrochloride. S. ¶ 133. On November 1, 1994, during the prosecution of an earlier filed terazosin hydrochloride patent, the ’095 patent (Form III), an in-house attorney for Abbott, Jerry F. Janssen, submitted the complete Sumika reference and a complete English translation to the PTO examiner who was considering the application. S. ¶ 134. His submission described the Sumi-ka reference as follows: Japanese KoKai Patent (published patent application filed December 31, 1990), published March 30, 1993 to Sumika Fine Chemicals, Ltd., which discloses seven crystalline modifications of terazo-sin hydrochloride and their preparation. S. ¶ 134. The same attorney, Janssen, prosecuted the ’207 patent. S. ¶ 135. On March 6, 1995, Janssen filed with the PTO an Information Disclosure Statement (“IDS”) with respect to the application for the ’207 patent, identifying several prior art references, including: Published Japanese Patent Application 05-0789,382 to Sumika Fine Chemical Co., Ltd., which discloses and claims crystalline modifications of anhydrous terazosin hydrochloride. S. ¶ 135. That ’207 patent IDS included a completed Form PTO 1449, which set forth the numbers of all the submitted references, including the Sumika reference. Next to the Sumika reference, a check mark indicated that an English translation of the reference had been included in the submission. S. ¶ 136. When the examiner reviewed the references, he made the following notation next to the checkmark by the Sumika reference: “(Abstract Only).” S. ¶ 137. In the ’207 litigation, when asked about the missing complete English-language translation of the Sumika reference, Janssen testified that he intended to submit the translation and thought he did. S. ¶ 138. He had provided the full translation of the Japanese patent as part of the application for the ’095 patent. S. ¶ 139. Mr. Wong, the assistant patent examiner in the ’207 patent application, testified that he saw the “full English language translation of’ the Japanese patent “during the pendency of the [’207] application.” S. ¶ 140. Later, in December 1995, Janssen filed an IDS and a Supplement to Information Disclosure Statement (“Supplement to IDS”) to the patent examiner. Those submissions disclosed two prior public sales of Form IV terazosin hydrochloride — a July 1990 sale from Byron to Geneva, and a December 1991 sale from Byron to Geneva. S. ¶ 141. In the IDS, Janssen argued that those two sales did not bar patentability for the same reasons expressed in a summary judgment brief that Abbott had filed in litigation. S. ¶ 142. Janssen did not prepare the summary judgment brief, although the language Janssen used in the IDS is similar to the language used in the Abbott summary judgment brief. However, Janssen’s IDS submission does not include the footnote from the brief that discusses the LaPorte case. S. ¶ 142. The 1986 LaPorte case held that the on-sale bar should apply when a third-party sale relates to a device which “embodies” the invention. 787 F.2d at 1583. Kaiser contends that citing this case to the PTO during the pendency of the ’207 application would have prevented the ’207 patent from being issued to Abbott. According to Kaiser, LaPorte would have demonstrated to the PTO that the on-sale bar applied as to the Form IV terazosin hydrochloride claimed by the ’207 patent. VII. Parties’Motions Based on these undisputed facts, Defendant Abbott moves for summary judgment on Plaintiffs’ Section Two sham litigation and Walker Process claims and argues that:(l) Abbott had an objectively legitimate basis for filing these lawsuits; (2) even assuming that some of these lawsuits are objectively baseless, Plaintiffs have proffered no admissible evidence that demonstrates a subjective, bad-faith effort to interfere with the generic competitors’ business; (3) alternatively, Abbott did not engage in a serial pattern and practice of filing automatic and baseless lawsuits; (4) after excluding the ’207 patent litigation, the remaining patent infringement lawsuits concluded before the generic manufacturers received tentative FDA-approval for their ANDAs, and thus, no antitrust injury flowed from the filing of these lawsuits; and finally, (5) on the Walker Process claim, Plaintiffs have come forward with no evidence of fraud or attempted fraud. The Individual Sherman Act Plaintiffs respond that: (1) they have shown a single serial pattern of sham lawsuits filed without probable cause and they need not show objective baselessness and subjective motive; (2) even if Abbott’s lawsuits are analyzed under a two-prong objective/subjective test, the lawsuits were objectively baseless and Abbott’s invocation of the attorney-client privilege and Abbot’s CEO’s internal memo satisfy the subjective prong of the standard; and (3) they need not demonstrate that tentative FDA approval was received before the patent lawsuits concluded to establish antitrust injury and standing. Separately, Kaiser argues that Abbott is not entitled to summary judgment on the Walker Process claim because disputed issues of material fact remain as to whether Abbott withheld the complete English-translation of the Su-mika reference and failed to cite the La-Porte decision to the ’207 patent examiner. The Court turns to these arguments. Discussion I. Standard Summary judgment is appropriate when “the pleadings ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the moving party demonstrates the absence of a genuine issue of material fact, the non-moving party must “come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)). Accepting the record evidence as truthful, the Court must view the record and all factual inferences therefrom in the light most favorable to the non-moving party and decide whether “ ‘the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997) (quoting Anderson, All U.S. at 251-52,106 S.Ct. 2505). II. Section Two and Noerr-Pennington Immunity Plaintiffs assert both Section Two monopolization and attempted monopolization claims. To establish a violation under Section Two of the Sherman Act for monopolization, a plaintiff must show: “(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). To prove a claim for attempted monopolization, a plaintiff must establish: “(1) that defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power.” Spectrum Sports, Inc. v. McQuil-lan, 506 U.S. 447, 456, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993). Plaintiffs claim that Abbott engaged in sham litigation by filing seventeen baseless patent infringement lawsuits in response to generic manufacturers’ notification of ANDA applications. This conduct. Plaintiffs assert, satisfies the predatory/anti-competitive conduct element of both a monopolization and attempted monopolization claim. See generally Robert H. Bork, The Antitrust Paradox: A Policy at War with Itself, 347-59 (The Freedom Press 1993) (1978) (explaining development of case law on sham litigation theory). Plaintiffs’ allegations require the Court to analyze: (1) the Noerr-Pennington doctrine of antitrust immunity including whether Plaintiffs have successfully demonstrated that a sham litigation exception strips Abbott of that immunity; and (2) the intersection of the sham litigation exception with the public interest in protecting an innovator drug company’s intellectual property rights. Generally, under the Noerr-Pennington doctrine, private citizens may exercise their First Amendment rights to petition the government with immunity from antitrust liability. See Baltimore Scrap Corp. v. David Joseph Co., 237 F.3d 394, 398 (4th Cir.2001) (citing Noerr, 365 U.S. at 136-39, 81 S.Ct. 523 and Pennington, 381 U.S. at 669, 85 S.Ct. 1585). The Noerr Court emphasized that it is “neither unusual [n]or illegal for people to seek action on laws in the hope that they may bring about an advantage to themselves and a disadvantage to their competitors ....” 365 U.S. at 139, 81 S.Ct. 523. In fact, the “federal antitrust laws do not regulate the conduct of private individuals in seeking anti-competitive action from the government.” McGuire Oil Co. v. Mapco, Inc., 958 F.2d 1552, 1558 (11th Cir.1992) (internal quotations and citations omitted). Although the Noerr-Pennington doctrine was created to immunize petitioning of administrative and legislative officials, the Supreme Court has extended the immunity to attempts to seek judicial relief. Id. at 1558-59 (citing Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972)). A. Sham Litigation Exception and PRE Objective/Subjective TwoFold Analysis Thus, in challenging actions that ostensibly seek judicial relief, an antitrust plaintiff must demonstrate that NoerrPennington immunity is inapplicable before proceeding to the elements of a federal antitrust claim. McGuire, 958 F.2d at 1559 n. 9. To meet its burden, a plaintiff must demonstrate that a defendant’s use of the judicial process comes within the “sham litigation” exception to Noerr-Pennington. Id. at 1559. Courts apply a two-part test in a “sham litigation” exception analysis. See Prof l Real Estate Investors v. Columbia Pictures Indus. Inc., 508 U.S. 49, 60, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993). First, a court must determine whether a lawsuit is objectively baseless. A lawsuit is objectively baseless when “no reasonable litigant could realistically expect success on the merits.” Id. at 60, 113 S.Ct. 1920. “If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr, and an antitrust claim premised on the sham exception must fail.” Id. Second, even if a lawsuit is objectively baseless, a court must also consider the “litigant’s subjective motive.” Id. Under this second prong, “the court should focus on whether the baseless lawsuit conceals an attempt to interfere directly with the business relationships of a competitor.” Id. at 60-61, 113 S.Ct. 1920 (internal quotations omitted). This “two-tiered process requires the plaintiff to disprove the challenged lawsuit’s legal viability before the court will entertain evidence of the suit’s economic viability.” Id. at 61, 113 S.Ct. 1920. In the patent-enforcement context, “ ‘whether conduct in procuring or enforcing a patent is sufficient to strip a patentee of its immunity from the antitrust laws is to be decided as a question of Federal ■ Circuit law.’ ” Nobelpharma, AB v. Implant Innovations, Inc., 141 F.3d 1059, 1068 (Fed.Cir.1998). Given'the undisputed facts regarding the seventeen lawsuits, the issues before the Court on the Section Two claims are legal ones: whether the seventeen terazosin hydrochloride patent lawsuits were objectively baseless and, if so, whether there is sufficient evidence to have a jury consider whether the lawsuits attempted to conceal an effort to interfere directly with the generic manufacturers’ business relationships. 1. Objective First Prong Analyzing whether the lawsuits were objectively baseless requires a look at the outcomes of each case. In this regard, the seventeen lawsuits can be divided between the “successful” and the “unsuccessful.” In examining the latter category, the issue becomes whether there was a reasonable basis for filing the suit at the time litigation was instituted. a. “Successful” Lawsuits “A winning lawsuit is by definition a reasonable effort at petitioning for redress and therefore not a sham.” PRE, 508 U.S. at 61, 113 S.Ct. 1920. Here, in seven of the seventeen lawsuits, Abbott dismissed the suit after obtaining the relief or information it sought. ' First, in the Geneva ’532 lawsuit, Geneva agreed to modify its process for manufacturing its generic tablet to avoid infringement, and Abbott voluntarily dismissed its complaint. Second, in the Geneva ’615 tablet case, Abbott agreed to dismiss the case after Geneva consented to switch from Form II terazosin hydrochloride to avoid infringement. Third, in the Lemmon ’532 action, Lemmon provided product samples and promised “not to engage in the commercial manufacture, use or sale of generic terazo-sin hydrochloride as long as the [’615] patent had not been found invalid or not enforceable.” After receiving that promise and samples, Abbott dismissed that case. Fourth, in the Invamed ’532/’095/’615 suit, Invamed agreed to provide certifications on the ’615 and ’095 patents, which it had previously refused to do, and Abbott voluntarily dismissed the case. Fifth, in the Warner ’615/’097 action, after originally asserting Paragraph IV certifications, and after Abbott filed suit, Warner switched to Paragraph III certifications. Abbott dismissed the case. Sixth,. in the .In-vamed ’095 case, after Invamed provided Abbott with a sworn statement that the active ingredient in Invamed’s proposed product would be manufactured outside the United States, Abbott dismissed the lawsuit. Finally, in the Geneva ’615 (capsule) case, Abbott sued to obtain additional information about the proposed generic products. After receiving that information, Abbott dismissed the action. See Hojfmanrtr-La Roche, Inc. v. Invamed, Inc., 213 F.3d 1359, 1364 (Fed.Cir.2000) (noting that filing suit to obtain court-supervised discovery after pre-suit investí-gation had uncovered “neither evidence of infringement nor non-infringement” was not baseless). Thus, in seven of the seventeen allegedly baseless lawsuits, Abbott obtained the relief it sought or additional information, and dismissed the lawsuits. By definition, Abbott “won” seven of these lawsuits because they were “reasonable efforts at petitioning for redress ...” PRE, 508 U.S. at 61,113 S.Ct. 1920. b. “Unsuccessful” Lawsuits It is undisputed that Abbott lost the remaining ten lawsuits. Nevertheless, a loss of a patent infringement lawsuit does not end the inquiry. Rather, “the patentee must have the right of enforcement of a duly granted patent, unencumbered by punitive consequences should the patent’s validity or infringement not survive litigation.” C.R. Bard Inc. v. M3 Sys., Inc., 157 F.3d 1340, 1369 (Fed.Cir.1998). “[W]hen the antitrust defendant has lost the underlying litigation, a court must ‘resist the understandable temptation to engage in post hoc reasoning by concluding’ that an ultimately unsuccessful action must have been unreasonable or without foundation.’ ” PRE, 508 U.S. at 61, 113 S.Ct. 1920 (citation omitted). Even when a pioneer drug maker sues a generic competitor in a patent infringement lawsuit but loses, the suit is not a sham if the state of the law is “uncertain.” Organon Inc. v. Mylan Pharms., Inc., 293 F.Supp.2d 453, 462 (D.N.J.2003) (applying PRE sham litigation standard to multiple patent infringement lawsuits filed against multiple defendants). i. ’615 Lawsuit (“Orange Book Listing Requirement”) Abbott lost the Zenith ’615 lawsuits. Abbott sued Zenith for patent infringement pursuant to 35 U.S.C. § 271(e)(2)(A) on the ’615 patent even though it had not listed it in the Orange Book. Zenith moved to dismiss based on the failure to list, and the district court agreed. Abbott Labs. v. Zenith Labs. Inc., 35 U.S.P.Q.2d 1161, 1165-67 (N.D.Ill.1995) (explaining that listing gives notice to an ANDA applicant and is a necessary predicate for a Hatch-Waxman patent infringement lawsuit). Based on that decision, Abbott immediately listed the patent and sued Zenith two months later for infringement on the ’615 patent. Again, Zenith moved to dismiss, and the district court granted the motion. See Abbott Labs. v. Zenith Labs. Inc., 934 F.Supp. 925, 939 (N.D.Ill.1995). Although the second Zenith ’615 suit (“Zenith ’615 II”) was not barred by res judicata, the court held that the listing was untimely because Abbott “did not have the ’615 patent listed ... at the time [Zenith] filed its ANDA.” Id. at 936. Nevertheless, the court denied Zenith’s motion for attorney’s fees because the Abbot suit was not “ ‘vexatious or unjustified litigation, or a frivolous suit.’ ” Id. at 939 (citation omitted). Here, the relevant infringement statute, 35 U.S.C. § 271(e)(2)(A), did not expressly state an Orange Book listing requirement before an infringement action could proceed. Neither court cited any case law that addressed this issue. Both the Zenith ’615 I and Zenith ’615 II decisions discussed the relevant legislative history and statutory interpretation in detail before concluding that Abbott needed to list the ’615 patent before suing for patent infringement. The judge who heard the cases, while deciding against Abbott, did not find Abbott’s argument frivolous. Importantly, the Zenith ’615 II court expressly found that the suit was not frivolous. Therefore, as a matter of law, the ’615 lawsuits were not objectively baseless. ii. ’097 Lawsuit (“URAA Patent Expiration”) The next Abbott loss raises the issue of when its ’097 patent expired. The ’097 patent was originally set to expire on September 5, 1995 (seventeen years after the date of issuance). However, after the Uruguay Round Agreements Act of 1994, the duration of the patent was extended to: (1) seventeen years from the date of issuance or (2) twenty years from filing, whichever expiration date was later. See 35 U.S.C. § 154(c)(1). Abbott argued that the new expiration date for the ’097 patent was January 21, 1997, or twenty years from the date the ’097 patent was filed (i.e., January 21, 1977). Nevertheless, the URAA also provided that if a patent application referred back to an earner application, the twenty year period would run from the date of the earlier-filed application. In this case, Geneva and Novopharm argued that the ’097 patent referred back to the ’894 patent which was issued on October 14, 1975. Thus, Geneva and Novopharm asserted that the ’097 patent expired on October 14, 1995, or twenty years from the filing date of the ’894 patent. Abbott then argued that the relevant effective date provision of the URAA, § 534(b), did not apply to applications filed before January 1, 1996, e.g., the ’097 patent. Thus, according to Abbott, the issuance date of the ’097 patent did not need to refer back to the ’894 patent’s issuance date. The district court agreed with Geneva and Novopharm and concluded that the ’097 patent expired on October 14, 1995. See Abbott Labs. v. Novopharm Ltd., No. 96-C-611, 1996 WL 131498 (N.D.Ill. Mar. 15, 1996). Abbott agreed to an expedited appeal of this decision, and ten months later the Federal Circuit affirmed. See Abbott Labs. v. Novopharm Ltd., 104 F.3d 1305, 1308 (Fed.Cir.1997). The question as to the ’097 patent litigation is not whether Abbott lost — -for it certainly did — but whether Abbott’s statutory interpretation and argument were objectively baseless. Neither the district court nor the Federal Circuit concluded that this action was frivolous. Moreover, the district court stated that no court had addressed Abbott’s specific argument before. Abbott, 1996 WL 131498 at *5. Likewise, the Federal Circuit cited no cases that had addressed this URAA provision. Abbott, 104 F.3d at 1308-09. The treaty was new, the provision had not been the subject of prior interpretation, and the argument, while hypertechnical, passed the “straight face” test. Therefore, although Abbott’s interpretation of the URAA was a stretch, it did not exceed the pale of an aggressive attempt to extend the existing law, and thus was not objectively baseless. iii. ’207 Lawsuits (“On-Sale Bar ”) The remaining lawsuits Abbott lost were the six ’207 patent lawsuits. Although Plaintiffs allege that the ’207 lawsuits should be viewed as six separate actions, the ’207 suits should be treated as one suit for purposes of this analysis because they all involved the same patent and the same underlying legal issue. See FTC Study at 19 (“it would be misleading simply to count the number of decisions in either party’s favor, because several of the decisions may be related to the same patent”); see also Twin City Bakery Workers & Welfare Fund v. Astra Aktiebolag, 207 F.Supp.2d 22