May 2010

Spotlight Info

Last month, in Innovative Therapies, Inc. v. Kinetic Concepts, Inc., No. 09-1085 (Fed. Cir. Apr. 1, 2010), the Federal Circuit affirmed the district court’s dismissal of Innovative Therapies, Inc.’s (“ITI”) DJ action against Kinetic Concepts, Inc. (“KCI”) based on an absence of an actual controversy within the contemplation of the Declaratory Judgment Act (“DJA”). 

ITI filed suit for DJ that five patents are invalid and/or not infringed by a device that ITI planned to offer for sale.  The district court dismissed the suit for lack of DJ.  On appeal, the Federal Circuit addressed three factors cited by ITI:  (1) ITI’s representations to the FDA, (2) ITI’s phone calls to KCI executives, and (3) KCI’s patent enforcement history. 

See the full summary in this issue.