CAFC Judge Mayer: “maybe posting paneling is a very, very bad thing.”

In December 2004, the Federal Circuit began a pilot program to announce the composition of appellate panels the week before holding oral arguments.  This program is now in jeopardy.

On March 10, the Federal Circuit heard oral arguments in Apotex v. Pfizer.  The New York district court had dismissed Apotex’s declaratory judgment action due to a lack of case and controversy. At the district court level, this case fell in line with the recent CAFC decision Pfizer v. Teva holding that an ANDA filing does not, by itself, create a reasonable apprehension of suit. In dissent in Teva, Judge Mayer argued that the statute does provide that an ANDA filing constitutes an act of infringement sufficient to trigger a justiciable controversy.  As it turns out, Judge Mayer was also a panel member for the Apotex v. Pfizer appeal, along with Judges Plager and Gajarsa.

Keith Scala, who attended the Apotex v. Pfizer oral hearing noted that, according to counsel’s arguments, Pfizer had executed a covenant not to sue Apotex a few days before the appellate arguments — but only after learning that Judge Mayer would be a member of the appellate panel.  The covenant not to sue is seen to greatly strengthen Pfizer’s argument that Apotex lacked jurisdiction to bring the DJ action.  However, executing the covenant may have been unnecessary had the appellate panel comprised a group more like that in Pfizer v. Teva.

According to Scala, at one point, Judge Mayer leaned over, looked squarely at Pfizer’s counsel and said,

“maybe posting paneling is a very, very bad thing.” 

Judge Mayer was, of course, referring to the the CAFC procedure of identifying the composition of panels several days in advance of the hearing. 

A decision will be expected in this case within the next few months.