Patent Law

Ferring B.V. v. Meijer, Inc., on petition for a writ of certiorari to the Supreme Court (2010)

In a controversial decision, the Court of Appeals for the Second Circuit held that a customer (rather than a competitor) has standing to bring a Walker Process monopolization claim based on the enforcement of patent that had been procured through fraud on the USPTO. In re DDAVP Direct Purchaser Antitrust Litigation, 585 F.3d 677 (2nd Cir. 2009). Although the Court of Appeals for the Federal Circuit holds exclusive jurisdiction over all appeals of final judgments in cases that are based "in whole or in part" on US patent law issues, the Second Circuit held that it had jurisdiction in this case because the antitrust claim stated in the complaint could have potentially been sustained without determining a question of patent law (even though the patent fraud issue was clearly the most important claim). The jurisdiction issue seemingly turned on the fact that the plaintiff's complaint included only one "count" of monopolization that could be proven by several different theories.

Ferring has now filed a petition for Supreme Court review focusing on the issue of appellate jurisdiction.

The question presented is whether the Second Circuit's new jurisdictional standard conflicts with this Court's decision in Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988), and with decisions of the Federal Circuit and Seventh Circuit, holding that the Federal Circuit has exclusive jurisdiction in any patent-based case in which patent issues must be resolved in order for plaintiffs to achieve the overall success of their claim and obtain all the damages (or other relief) they seek.

In Christianson, the Supreme Court held that the Federal Circuit holds exclusive jurisdiction over patent cases when the "well-pleaded complaint establishes either that federal patent law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent law is a necessary element of one of the well-pleaded claims."

Comment: This case has a strong chance of being granted certiorari. Of course, patentees would generally prefer to have their cases heard by the Federal Circuit. Several trade organizations, including IPO, BIO, and PhRMA, are expected to file briefs in support of the petition.

Documents:

• File Attachment: DDAVP Cert. Petition.pdf (716 KB)
• File Attachment: 2nd Circuit Decision 065525p.pdf (103 KB)
• File Attachment: Christianson v Colt (1305 KB)