By Dennis Crouch
Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. (Supreme Court 2014)
The Supreme Court has granted Teva’s petition for writ of certiorari on the issue of de novo review of district court claim construction. Rather than mounting a facial challenge to all de novo review, the petitioner here argues that, at minimum, a district court’s explicit factual conclusions should be given deference. The case will be heard next term.
The question presented is as follows:
Rule 52(a) of the Federal Rules of Civil Procedure provides that in matters tried to a district court, the court’s “[f]indings of fact . . . must not be set aside unless clearly erroneous.”
The question presented is as follows: Whether a district court’s factual finding in support of its construction of a patent claim term may be reviewed de novo, as the Federal Circuit requires (and as the panel explicitly did in this case), or only for clear error, as Rule 52(a) requires.
In its responsive brief, Sandoz re-characterized the question as follows:
Whether Federal Rule of Civil Procedure 52(a) requires an appellate court reviewing a district court’s construction of patent claims to defer to conclusions that are based on a litigation expert’s declaration that expressly contradicts the patent record.
The case involves Teva’s multi-billion-dollar drug Copaxone that is arguably covered by a set of nine different patents. The appellate decision by the Federal Circuit rejected the lower court’s claim construction and, as a consequence, found several of the patents invalid. The result is that the remaining patents expire in May 2014 rather than September 2015. Teva’s daily US sales of the drug are about $8 million.
I’ll speculate here that the result will be a unanimous rejection of the Federal Circuit’s no deference policy.