Going Their Own Way
Baxter owns a patent.
Fresenius sought to invalidate it for obviousness in federal district court.
No dice, said the district court, granting judgment as a matter of law in favor of Baxter (affirmed by the Federal Circuit on other grounds).
In the meantime, Fresenius tried its luck at the PTO, instigating a re–examination three years after the lawsuit.
Despite the Federal Circuit’s ruling, the Board of Patent Appeals and Interferences found Baxter’s patent invalid as obvious.
Relying (in part) on some prior art references that had not been considered in the court’s decision, the BPAI also noted that the agency is “not bound” by the court’s determination.
A panel (majority) of the Federal Circuit affirmed, noting that Congress provided for a reexamination system that permits validity challenges by third parties—even losing litigants.
Judge Newman dissented—on grounds that the decision essentially allowed an administrative body to nullify a final judicial judgment. In short, a violation of res judicata, the rule that once an issue has been decided, it can’t be litigated again.
Baxter filed an en banc rehearing petition with the Federal Circuit.
The petition was denied last week, by a 10–1 majority, Judge Newman dissenting again.
A long tortured road for both parties, indeed. Differing burdens of proof and differing records in the district court and PTO may mean differing results—and thus Baxter suggests that nothing’s over until it’s over…and maybe not even then.