Wednesday, July 27, 2011

Novo Nordisk v. Caraco

About one year ago, en banc rehearing was denied in Novo Nordisk v. Caraco :

Defendants-Appellees Caraco Pharmaceutical Labora- tories, Ltd. and Sun Pharmaceutical Industries, Ltd. (“Caraco and Sun”) filed a combined petition for panel rehearing and rehearing en banc. The panel invited a response from Plaintiffs-Appellants Novo Nordisk A/S and Novo Nordisk, Inc. The court granted leave to file briefs amici curiae to Teva Pharmaceuticals, USA, Inc., Mylan Pharmaceuticals Inc., Apotex Inc. and Impax Laborato- ries, Inc., Consumer Federation of America and National Legislative Association on Prescription Drug Prices, and Generic Pharmaceutical Association.
The petition for rehearing was considered by the panel that heard the appeal, and thereafter the petition for rehearing en banc, the response to the petition, and briefs amici curiae were referred to the circuit judges who are authorized to request a poll on whether to rehear the appeal en banc. A poll was requested, taken, and failed.

There was a dissent to the denial:

The background and facts of this case are well laid out in Judge Dyk’s dissent in the original panel decision. See Novo Nordisk A/S v. Caraco Pharm. Labs., Ltd., 601 F.3d 1359, 1370-78 (Fed. Cir. 2010) (Dyk, J., dissenting). As the dissent explains, the majority’s opinion adopts an overly narrow construction of “patent information” and an overly broad construction of “an approved method of using the drug.” See id. at 1370-72, 1376-78. Both construc- tions are irreconcilable with pre-existing FDA regulations, the text of the HWA, and Congressional intent. See id. at 1370-78. I believe rehearing the case en banc is necessary to rectify these improper constructions.

Now, there is an order on 27 July 2011:

The parties jointly move to stay the briefing schedule, pending the Supreme Court's disposition of Caraco Phar- maceutical Laboratories, Ltd. v. Novo Nordisk AIS, No. 10-844.

The Supreme Court granted certiorari in Caraco on June 27, 2011.

Upon consideration thereof,
The motion is granted. The parties are directed to in- form this court, within 14 days of the Supreme Court's disposition of Caraeo, concerning how they believe this appeal should proceed.


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