United States Federal Circuit

In an action alleging that certain importations of recombinant human erythropoietin and derivatives thereof were in violation of section 337 of the Tariff Act of 1930, and charging infringement of various of plaintiff's patents, summary determination of noninfringement and rulings against plaintiff are affirmed in part and reversed in part where: 1) the safe harbor provided by 35 U.S.C. section 271(e)(1) applies in proceedings under the Tariff Act relating to process patents as well as product patents, for an imported product that is used for exempt purposes; 2) the Commission erred in holding all importation and all uses exempt while FDA approval was pending, as the safe harbor statute does not so provide; and 3) the Commission erred in ruling that it had no jurisdiction to determine a violation of section 337 in the posture of the case.

Appellate Information

• Decided 03/19/2008
• Published 03/19/2008

Judges

• PER CURIAM.1, Before NEWMAN, LOURIE, and LINN, Circuit Judges.

Court

• United States Federal Circuit

Counsel

• For Appellant:
  
• Linda A. Sasaki-Baxley, Day Casebeer Madrid & Batchelder LLP, of Cupertino, CA, argued for appellant.   On the brief was Lloyd R. Day, Jr. Of counsel were David M. Madrid and Katie J.L. Scott.   Of counsel on the brief were Cecilia H. Gonzalez and Margaret D. MacDonald, Howrey LLP, of Washington, DC., Michael P. Dougherty, Morgan & Finnegan, LLP, of New York, NY, argued for intervenors.   With him on the brief were Bartholomew Verdirame, Tony V. Pezzano, and John C. Vassil, of New York, NY;  and Kent R. Stevens, of Washington, DC. Of counsel on the brief were Leora Ben-Ami, Patricia A. Carson, Thomas F. Fleming, Howard S. Suh, and Manvin Mayell, Kaye Scholer LLP, of New York, NY;  and V. James Adduci II, Adduci, Mastriani & Schaumberg, LLP, of Washington, DC. Of counsel were Tom M. Schaumberg and Maureen F. Browne, of Washington, DC.


• For Appellees:
  
• Christal A. Sheppard, Attorney, Office of the General Counsel, United States International Trade Commission, of Washington, DC, argued for appellee.   With her on the brief were James M. Lyons, General Counsel, and Wayne W. Herrington, Assistant General Counsel.