On September 8, 2015, Bancroft attorneys Paul D. Clement, D. Zachary Hudson, and Edmund G. LaCour Jr. filed a petition for certiorari in the United States Supreme Court on behalf of petitioner Mylan Pharmaceuticals. Apotex filed suit against Daiichi Sankyo, Inc. seeking a declaratory judgment that its generic version of a Daiichi Sankyo drug would not infringe one of the patents associated with the drug. Daiichi Sankyo—and Mylan as intervenor—argued that Apotex lacked standing to bring suit: Daiichi Sankyo had disclaimed the patent at issue years earlier and thus there could be no case or controversy regarding infringement of that patent. In Apotex Inc. v. Daiichi Sankyo, Inc., the Federal Circuit held that Apotex had standing to bring suit notwithstanding Daiicho Sankyo’s disclaimer because a judgment of non-infringement could trigger certain statutory consequences under the Hatch-Waxman Act. The questions presented are: (1) whether Article III’s case or controversy requirement can be satisfied when the suit seeks a judgment of non-infringement of a disclaimed patent, and (2) whether Congress can create Article III jurisdiction by imposing statutory consequences that turn on obtaining a judgment of non-infringement of a disclaimed patent.
John Kennedy, Mylan Takes Benicar Patent Dispute to the Supreme Court, Law360 (Sept. 21, 2015)