By Eric Schweibenz
On May 23, 2011, Chief ALJ Paul J. Luckern issued Order No. 9 in Certain Vaginal Ring Birth Control Devices (Inv. No. 337-TA-768).

According to the Order, Complainant Femina Pharma Incorporated (“Femina”) moved to compel Respondents Merck & Co., Inc., Schering Plough Corporation, Organon Inc., and N.V. Organon (collectively, “Merck”) to respond to interrogatories relating to statements on the manufacture and operation of the NuvaRing® product as well as the state of the art.  ALJ Luckern denied the motion as to four interrogatories on the grounds that they sought information about a Merck patent not at issue in the investigation, noting that opinions on a patent’s validity are typically considered privileged unless waived in any event.  With respect to an interrogatory requesting information as to why the Merck patent is listed in the Orange Book as pertaining to the NuvaRing® product, the ALJ granted the motion to the extent that Merck has not produced all non-privileged information.  The ALJ also granted the motion as to an interrogatory requesting information about Merck’s first knowledge of a prior art reference on which it has relied.