Random Thought about Fresenius, Races to Judgment, and Choice of Law

There's a great short piece here about how the loser in a patent case in a district court has a strong incentive to go to inter partes review and, if lucky, to win the race between the IPR proceeding and the CAFC deciding the case, because in Fresenius, the CAFC held that a judgment on appeal was not "final."

One thing that really bugs me about Fresenius is this:  the judgment came out of the Ninth Circuit, but no where does the Fresenius court apply Ninth Circuit law to the question of whether the judgment is final.  I don't think that whether a judgment is "final" or not is a question unique to patent law…

Anyhow, back to prepping for class I go.

 

2 thoughts on “Random Thought about Fresenius, Races to Judgment, and Choice of Law

  1. Prof., I really don’t think it is possible for a losing patent infringement defendant to file a fresh IPR given ยง315(b), a statute that requires an eye PR be filed within one year of service of a complaint for patent infringement.

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