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June 12, 2017

Comments

"The BPCIA sets forth a carefully calibrated scheme for preparing to adjudicate, and then adjudicating, claims of infringement."

Hey Kevin,

What a bunch of malarkey, as the perplexed SCOTUS Justices showed in the oral argument transcript. The BPCIA was certainly not "carefully" drafted and as could be expected from our virulently anti-patent Judicial Mount Olympus, all doubts in it were resolved against the patent owner-what a surprise! (And yes, I'm being very sarcastic.)

I really don't remember much about preemption from law school, but I don't understand why "the Supreme Court remanded this issue back to the Federal Circuit to determine whether an injunction is available under state law to enforce § 262(l)(2)(A), or whether state law enforcement is preempted by BPCIA." Since all of the BPCIA is federal law, how could an injunction be available under state law to enforce any of it?

My understanding is that California's unfair competition law could (as in, perhaps not, is able to) be used to obtain an injunction against Sandoz. Whether or not this is the case is what the Court remanded to the Federal Circuit to determine.

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