Implementing unique litigation tactics, on June 15, 2016, Foley & Larder LLP filed a complaint under Section 337 of the Tariff Act at the
The very recent and continuing focus by the U.S. Supreme Court and the Federal Circuit sitting en banc on multi-party infringement issues namely, induced infringement and divided, or joint, infringement portends daunting new challenges for brand pharmaceutical companies that attempt to assert method of treatment claims in Hatch-Waxman litigation against generic competitors.
A recent Federal Circuit decision shows that even under the liberalized standard for declaratory judgment jurisdiction set forth in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007), and SanDisk Corp. v. STMicrolectronics, Inc., 480 F.3d 1372 (Fed. Cir. 2007), a party that is uncomfortable about the existence of another's patent but has not been accused of infringement may have difficulty establishing the existence of a case or controversy sufficient to support a declaratory judgment action against the patentee.
After a patentee appealed the decision of the International Trade Commission (ITC), the Federal Circuit held that the ITC properly applied the infringement safe harbor under 35 U.S.C. 271(e)(1) in a proceeding against the allegedly unlawful importation of products made by a patented process.