Wednesday, November 6, 2013

Medtronic v. Boston Scientific

On November 5, 2013, the United States Supreme Court heard oral arguments in Medtronic, Inc. v. Boston Scientific Corporation, et al..  Seth Waxman, a former U.S. Solicitor General, attorney for petitioner, Medtronic, and partner at WilmerHaleexplained the legal issue at the heart of the litigation:
Patent law places the burden of proving infringement on the patentee. And until this case, it was settled that the burden does not shift if the issue arises in a declaratory action seeking a judgment of non-infringement.  The [Court of Appeals for the] Federal Circuit imposed a different rule in suits brought under [MedImmune, Inc v. Genentech, Inc., et al.] where the party seeking a declaration of non-infringement is a licensee. That was error.

Allocation of the burden of proof inheres in the governing substantive law while the Declaratory Judgment Act is procedural only and does not change substantive rights. The burden of proof in MedImmune actions, like all other declaratory actions, remains where it would have rested in the equivalent coercive suit brought by that patentee.
Based on what transpired in these oral arguments, the Supreme Court appears skeptical of the burden-shifting rule introduced by the Federal Circuit in MedImmune.  A decision is likely before next summer.

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