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IP News

By Howard J. Shire and Matthew Berkowitz

Federal Circuit Grants Petition for Interlocutory Appeal

On Feb. 6, 2009, the Federal Circuit granted Sandoz, Inc.'s petition for an interlocutory appeal in the case of Shire LLC v. Sandoz, Inc., Misc. Docket No. 893. Sandoz petitioned the court to hear the issue of whether a patentee who settles an earlier infringement case after a Markman ruling has issued is precluded under the doctrine of collateral estoppel from relitigating claim-construction issues determined in the prior case. In its summary judgment order, the district court acknowledged two previous holdings from different district courts addressing the patents-in-suit, taking opposite positions regarding issues affecting the claim construction in this case. No. 07-cv-00197 (D. Col.). The Colorado district court refused to give preclusive effect to the first court's claim construction, but granted Sandoz's motion to certify on the ground that the issue could be dispositive as to the infringement of at least one of the patents in the case.

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