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Fresenius v. Baxter International: Riding Cross-Currents of Collateral Estoppel in a New Age of Patent Challenges at the USPTO

by Ralph A. Loren
Edwards Wildman Palmer LLP - Boston Office

Brian P. Murphy
Edwards Wildman Palmer LLP - New York Office

August 7, 2013

Previously published on August 2013

On July 2, 2013, a divided Federal Circuit panel issued a remarkable decision. It vacated Baxter’s patent infringement judgment and an award of $14.3 million in pre-verdict damages that already had been reviewed and affirmed by the Federal Circuit. There was no en banc review or certiorari from the Supreme Court that compelled this reversal of fortune; those requests had been denied. Judge Dyk and Judge Prost ruled that a subsequent decision to invalidate the patent claims following reexamination by the USPTO, a decision affirmed by a different divided Federal Circuit panel, required dismissal of the “still-pending” patent infringement litigation.


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