United States Federal Circuit

In an action brought under the Declaratory Judgment Act and the provision of the Hatch-Waxman Act establishing civil actions for patent certainty, dismissal of plaintiff's declaratory judgment action for noninfringement against defendants is reversed and remanded where: 1) in the context of the Hatch-Waxman framework, defendant's covenant not to sue plaintiff did not eliminate the controversy between the parties, and thus, the declaratory judgment action presents a continuing Article III controversy.

Appellate Information

• Decided 04/01/2008
• Published 04/01/2008

Judges

• Before GAJARSA, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PROST, Circuit Judge.

Court

• United States Federal Circuit

Counsel

• For Appellant:
  
• James F. Hurst, Winston & Strawn, LLP, of Chicago, IL, argued for plaintiff-appellant.   With him on the brief were Derek J. Sarafa and Samuel S. Park. Of counsel on the brief were Steffen N. Johnson and Luke W. Goodrich, of Washington, DC.


• For Appellees:
  
• Gerald J. Flattmann, Jr., Kirkland & Ellis LLP, of New York, NY, argued for defendants-appellees.   With him on the brief were John M. Desmarais, Christine Willgoos, and Benjamin A. Lasky.   Of counsel was Peter J. Armenio.