Timing Is Everything

In Fresenius v Baxter, a split Federal Circuit says timing allows USPTO outcome to void earlier district court patent lawsuit adjudication.

September 9, 2013

Just last year, the Federal Circuit endorsed the potential for different outcomes in the United States Patent and Trademark Office (“USPTO”) and in district court patent litigation.1 Short on the heels of that decision, the Federal Circuit has now concluded that, in certain circumstances, a later outcome obtained at the USPTO can override and void a district court’s adjudication of a lawsuit. In Fresenius USA, Inc v Baxter International, Inc,a spilt panel of the Federal Circuit highlights how significantly a patent holder’s fortune might change depending on the timing and nature of a decision from a district court or the USPTO or, as in the case of patent-holder Baxter, both forums.

1. In re Baxter Int’l, Inc, 678 F.3d 1357 (Fed. Cir. 2012) (“Baxter I”).
2. Nos. 2012-1334, 2012-1335, 2013 US App. LEXIS 13484 (Fed. Cir. Jul. 2, 2013) (“Baxter II”).

Reprinted with permission from Intellectual Property Magazine

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Matthew McFarlane

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