On Tuesday, November 5, the Federal Circuit voted 6-4 to deny a request for en banc rehearing in Fresenius vs. Baxter. The court decision in July held that “cancellation of a patent on re-examination can wipe out an infringement judgment.” Finnegan partner James R. Barney told Law360 “The en banc court split dramatically and the dissent uses language flagging this as an important constitutional issue,” he said. “It has all the ingredients to have as a good a chance as any of being taken up by the Supreme Court.”
Barney also said, “What makes this case stand out is the degree to which the district court decision is perceived to be final,” where even a final court decision that the patent is valid and infringed is not final enough. He noted interesting implications in light of new America Invents Act proceedings, adding, “This is a very important case for the bar because of the new post-grant review procedures that are in place and that new emphasis by Congress and the PTO on using those procedures. Patent litigation is high stakes and litigants look for any opportunity to press their advantage.”
