<<The Supreme Court's denial of certiorari effectively ends of Lovenox patent case, as far as I can tell. The District Court will now likely order a dismissal based on the Hatch-Waxman Safe Harbor.>>
That's not absolutely clear. Five pages of the Amphastar brief were devoted to the argument that cert was inappropriate because the appeal is "interlocutory," i.e., there has not been a final judgement in the lower court. Put another way, the H-W holding could be moot if the district court holds a trial and finds the patents invalid. On the other hand, if, as you surmise, the district court enters summary judgement based on the H-W argument, Momenta can try again. Here is a portion of the argument from the Amphastar brief. We can't really know for sure given that the court, as is typical, simply denied cert with no explanation.
Finally, the petition’s interlocutory posture is “of itself alone” a “sufficient ground for the denial of the [writ].” Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258 (1916). This Court “generally await[s] final judgment in the lower courts before exercising [its] certiorari jurisdiction.” Virginia Military Inst. v. United States, 508 U.S. 946 (1993) (Scalia, J., concurring in denial of certiorari); see also Estelle v. Gamble, 429 U.S. 97, 114 (1976) (Stevens, J., dissenting) (referring to the Court’s “normal practice of denying interlocutory review”); Goldstein v. Cox, 396 U.S. 471, 478 (1970) (“[T]his Court above all others must limit its review of interlocutory orders.”); Brotherhood of Locomotive Firemen & Enginemen v. Bangor & Aroostook R.R. Co., 389 U.S. 327, 328 (1967) (per curiam) (“[B]ecause the Court of Appeals remanded the case, it is not yet ripe for review by this Court. The petition for a writ of certiorari is denied.”); American Constr. Co. v. Jacksonville, T & K. W. Ry. Co., 148 U.S. 372, 384 (1893) (“Clearly, therefore, this court should not issue a writ of certiorari to review a decree of the circuit court of appeals on appeal from an interlocutory order, unless it is necessary to prevent extraordinary 25 inconvenience and embarrassment in the conduct of the cause.”).
That petitioners seek review of the court of appeals decision to vacate a preliminary injunction (that ceased operation over 16 months ago) magnifies the inappropriateness of interlocutory review. See Meccano, Ltd. v. John Wanamaker, New York, 253 U.S. 136, 141 (1920) (“Upon appeal, an order granting or denying such an injunction will not be disturbed, unless contrary to some rule of equity, or the result of improvident exercise of judicial discretion. The informed judgment of the Circuit Court of Appeals exercised upon a view of all relevant circumstances is entitled to great weight. And, except for strong reasons, this court will not interfere with its action.”) (citations omitted).
It also bears noting that, contrary to their position here that the “court of appeals definitively determined the scope of Section 271(e)(1),” Pet. 32, petitioners have told the district court that they “will oppose” respondents’ “motion for summary judgment based solely upon the [safe harbor] issue,” Joint Mot. to Stay, Dist. Ct. Dkt. No. 327 at 2 (D. Mass. Aug. 9, 2012); see also Am. Order, Dist. Ct. Dkt. No. 431 (D. 2012); see also Am. O Mass. May 2, 2013).
AI
