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Supreme Court to Decide Standing Issue

By Shane Cortesi
April 28, 2006

On Feb. 21, 2006, the Supreme Court granted certiorari to review MedImmune, Inc. v. Genentech, 427 F.3d 958 (Fed. Cir. 2005). The question presented is: 'Does Article III's grant of jurisdiction of 'all Cases … arising under … the Laws of the United States,' implemented in the 'actual controversy' requirement of the Declaratory Judgment Act, 28 U.S.C. '2201(a), require a patent licensee to refuse to pay royalties and commit material breach of the license agreement before suing to declare the patent invalid, unenforceable, or not infringed?' Whether the Court affirms or reverses the Federal Circuit, which answered in the affirmative, undoubtedly will affect the balance of power between patentees and their licensees and, perhaps, the willingness of licensors to grant licenses.

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