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March 30, 2007
Actual Controversy
Generic
drug maker Teva took on
Novartis for its
Famvir® herpes drug by filing an ANDA with
the FDA. Teva figured facing five patents, but Novartis only sued for infringing
one. So Teva sought declaratory judgment "to obtain patent certainty" on the
other four. The district court dismissed, but, in light of the Supreme Court
MedImmune ruling last November, and the CAFC's
Sandisk ruling a few days ago, the CAFC (06-1181)
remanded, telling the district court to take the case. Any "actual controversy"
now lays the tarmac for takeoff of a declaratory judgment filing.
In concurring opinion, Judge Friedman put the last nail in the coffin of the old, higher standard, required for seeking declaratory judgment.
In these unusual circumstances, where the Supreme Court went out of its way to state its disagreement with our “reasonable apprehension of imminent suit” test, which was not an issue in the case before it, it appears incumbent on us to stop using that test and hereafter to apply the general declaratory judgment standards that the Supreme Court applied in Medimmune.
Posted by Patent Hawk at March 30, 2007 11:50 AM | Declaratory Judgment