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« Institut Pasteur v. Focarino (Fed. Cir. 2013) | Main | More Q&A from Webinar on Top Patent Law Stories of 2013 »

January 22, 2014



Your criticism of Breyer's reasoning in section B of this opinion is absolutely on target. To use my late patent attorney father's expression, Breyer's posited basis for ignoring legitimate concerns raised by IPO "doesn't hold soap."

Frankly, and as was clearly shown by his reasoning in Mayo where he completely brushed aside the Government's argument that 101 issues should be dealt with last, not first, Breyer is uninterested in the "realities" of the situation, but only in making life as difficult as possible for the patentee. Medimmune started this awful process in "disrupting" the balance in how deals are struck between the licensee and the patent licensor. Medtronic has now shifted that balance even further in favor of licensees running to court for DJ actions whenever they feel it's to their advantage. Once more, the shadow of Lear v. Adkins is raising its ugly head.

The Court runs amuck.


"Amuck" with a vengeance and anti-patent fervor that is ghastly to behold.

I'm confused. If I'm a licensee and file a DJ action, the patentee must prove I infringe in order to successfully defend. But since there's a license in place, I *can't* infringe, or at least the patentee can't claim any damages. So basically this becomes similar to ANDA litigation: the court decides if my product would infringe but for the license that insulates me. So as long as I continue to pay royalties, I'm good. Is that correct?

Seems like this will push patentee licensors into demanding more at the front end of the license, if they bother to license at all.

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