Argument Preview

Only one case being argued next week at the Federal Circuit attracted an amicus brief, Amgen Inc. v. Watson Laboratories, Inc. In this case, Amgen, a patent owner, asks the Federal Circuit to force a district court to vacate its judgment of non-infringement in favor of a consent judgment of infringement. This is our argument preview.

In its opening brief, Amgen points out that, in this case, “both parties jointly moved for vacatur and entry of the consent judgment.” Amgen argues “that vacatur is appropriate when the party that won below acknowledges that it should not have won.” And, according to Amgen, “the particular circumstances” of this case, “multi-party Hatch-Waxman litigation,” indicates “that the proper way to promote ‘orderly operation of the federal judicial system,’ is to allow brands and generics to agree to settlements that provide for vacatur of non-infringement judgments and entry of consent judgments of infringement.”

In their response brief, Watson Laboratories and Actavis Pharma argue that, “[i]f the Court declines to reverse the district court’s decision denying vacatur of the judgment of noninfringement . . . and reaches the merits of the noninfringement judgment, it should affirm.” They contend that they have not admitted that their generic tablets “infringe the patent-in-suit.” And they explain that, “[i]n the event that the Court reaches the merits, it should find no clear error in the district court’s conclusion that there is no infringement under the doctrine of equivalents.”

In its reply brief, Amgen points out that while “Watson ‘takes no position’ on vacatur,” it “does take a passing swipe at the first reason for vacatur by claiming its admission should not count.” Amgen contends that “overlapping lawsuits often require that brand-generic settlements be effectuated through vacatur and entry of consent judgments to protect against any unintended collateral impact on earlier litigants and settlements.”

Cipla Limited and Cipla USA filed an amicus brief in support of Watson Laboratories and Actavis Pharma. Cipla argues that, in addition to mootness, the Federal Circuit “lacks jurisdiction to decide . . . these issues by reason of a binding, in-force settlement agreement between Amgen and Teva” and, therefore, the appeal should be dismissed. They further argue that the Federal Circuit should affirm the judgment of non-infringement in this case regardless of “whether the district court erred in refusing to ‘indicate’ that it would, in the event of a remand . . . issue a collusive ‘consent judgment.’”

We will keep track of this case and report on any developments.