Federal Circuit Issues Fresenius v. Baxter International Opinion

On July 2, 2013, the Federal Circuit issued its decision (available here) in Fresenius v. Baxter International. The court held, over a vigorous dissent by Circuit Judge Newman, that if the PTO finds that the asserted claims of the patent in suit are invalid while an infringement suit remains pending (even if an invalidity finding in litigation had been affirmed on appeal by the Federal Circuit), the patent holder no longer has a cause of action and the litigation must be dismissed. This decision will likely result in an increase in the number of reexaminations filed by defendants accused of patent infringement.

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