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Friday, September 12, 2008

"Paralyzing uncertainty" not enough for Declaratory Judgment Action

Great summary over at Patent Baristas of the recent CAFC case, Prasco v. Medicis Pharmaceutical (07-1524). The court found that, after Prasco sent samples of its new product to Medicis, along with a demand for a covenant not to sue, Medicis's silence did not create the necessary set of circumstances articulated by the Supreme Court under Medimmune, namely, there was no "substantial controversy, between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." By not responding to Prasco, Medicis did not create a case or controversy, despite Prasco's contention that Medicis's silence created "paralyzing uncertainty" from fear that Medicis will bring an infringement suit against it at some future date.

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