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UPJOHN CO. v. KESSLER

No. 4:96-CV-90.

938 F.Supp. 439 (1996)

The UPJOHN COMPANY, Plaintiff, v. David A. KESSLER, M.D., Commissioner of Food and Drugs, Defendant.

United States District Court, W.D. Michigan, Southern Division.

April 30, 1996.

Attorney(s) appearing for the Case

Jon R. Muth, Jon G. March, Miller, Johnson, Snell & Cummiskey, Grand Rapids, MI, John Vanderstar, Bruce N. Kuhlik, Covington & Burling, Washington, DC, for Upjohn Company.

Jeffrey D. Smith, Varnum, Riddering, Schmidt & Howlett, Kalamazoo, MI, for Barre-National, Inc.

Gerald C. Kell, U.S. Department of Justice, Office of Consumer Litigation, Washington, DC, for David A. Kessler.

Thomas F. Koernke, Boyden, Waddell, Timmons & Dilley, Grand Rapids, MI, John R. Fleder, Olsson, Frank & Weeda, PC, Washington, DC, for Lemmon Company.

Andrew J. Broder, Vicko, Lane, Payne & Broder, PC, Bingham Farms, MI, Jeffrey Gibbs, Hyman, Phelps & McNamara, Washington, DC, for Bausch & Lomb Pharmaceuticals, Inc.

OPINION

ROBERT HOLMES BELL, District Judge.

Plaintiff The Upjohn Company filed this action for declaratory and injunctive relief to compel the Food and Drug Administration (the "FDA") to grant Plaintiff a three-year period of "market exclusivity" for over-the-counter sales of Rogaine, the company's brand name for minoxidil 2% topical solution.

On April 15, 1996, this Court granted Upjohn's ex parte motion for a temporary restraining order...

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