United States Federal Circuit

Dismissal of plaintiff's suit, seeking a determination that its generic drug did not infringe defendant's patent, is affirmed where plaintiff failed to establish that an actual controversy existed between it and defendant, as required under the Declaratory Judgment Act, 28 U.S.C. section 2201(a).

Appellate Information

• Decided 01/21/2005
• Published 01/21/2005

Judges

• SCHALL, Circuit Judge., Before MAYER , CLEVENGER, and SCHALL, Circuit Judges.

Court

• United States Federal Circuit

Counsel

• For Appellant:
  
• Henry C. Dinger, Goodwin Procter LLP, of Boston, Massachusetts, argued for plaintiff-appellant.   Of counsel on the brief was Thomas J. Meloro, Jr., Kenyon & Kenyon, of New York, New York., William A. Rakoczy, Rakoczy Molino Mazzochi LLP, of Chicago, Illinois, for amicus curiae Generic Pharmaceutical Association.   With him on the brief was Lara E. Monroe-Sampson., Sarah Lenz Lock, AARP Foundation Litigation, of Washington, DC, for amicus curiae AARP. With her on the brief was Bruce Vignery.   Of counsel on the brief was Michael Schuster, AARP, of Washington, DC., William L. Mentlik, Lerner, David, Littenberg, Krumholz & Mentlik, LLP, of Westfield, New Jersey, for amicus curiae IVAX Pharmaceuticals, Inc. With him on the brief was Roy H. Wepner., Lawrence DeMille-Wagman, Attorney, Federal Trade Commission, of Washington, DC, for amicus curiae Federal Trade Commission.   With him on the brief were William E. Kovacic, General Counsel;  Susan A. Creighton, Director, Bureau of Competition;  John F. Daly, Deputy General Counsel for Litigation;  and Lore A. Unt, Counsel for Intellectual Property.


• For Appellees:
  
• Dimitrios T. Drivas, White & Case LLP, of New York, New York, argued for defendant-appellee.   With him on the brief were Jeffrey J. Oelke and Adam Gahtan.