Thursday, April 03, 2008

CAFC cites Marbury v. Madison

One blog post is not big enough to cover all the angles of Caraco v. Forest related to Lexapro
and U.S. Patent No. 6,916,941.

The bottom line of the wide-ranging opinion:

In sum, Caraco’s declaratory judgment action presents an Article III controversy
as to whether the drug described in Caraco’s ANDA infringes Forest’s Orange-Book-
listed ’941 patent. This controversy is not premised only upon a threat of an
infringement suit. A controversy also exists because Forest’s actions effectively prevent
the FDA from approving Caraco’s ANDA and thus exclude Caraco from the drug
market. (...) we reverse the district court’s decision dismissing
Caraco’s declaratory judgment action and remand for further consideration.

In passing, one notes Kirkland's John M. Desmarais was on the losing end of this
decision. Recall an earlier IPBiz post concerning Tafas v. Dudas: IPBiz, with no disrespect to
Whealan or Desmarais, notes that this case was a stone-cold loser for the USPTO, no matter who argued it.

***Note also

Marshall versus Jefferson: The Political Background of Marbury v. Madison by Donald O. Dewey


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