Schall, J. Granting motion to stay pending disposition of Therasense v. Becton, Dickinson & Co.

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Per Curiam. Granting motion to dismiss appeal as frivolous, denying motion for sanctions, and awarding costs.

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(Schall) Reversing judgment of invalidity because of alleged prior invention, but affirming infringement determinations. Under 35 U.S.C. § 102(g)(2), a party in this country who received the invention from other people abroad and then reproduced it in this country according to their instructions was not an "inventor" of the claimed invention. Reproducing an invention conceived and reduced to practice abroad in this country "cannot be conception …."[O]riginality is … inherent to the notion of conception."

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The Supreme Court has granted certiorari to consider the intent requirement for induced infringement. The question presented is:

Whether the legal standard for the state of mind element of a claim for actively inducing infringement under 35 USC 271(b) is "deliberate indifference of a known risk" that an infringement may occur, as the Court of Appeals for the Federal Circuit held, or "purposeful, culpable expression and conduct" to encourage an infringement, as this Court taught in MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 937 (2005)?

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(Prost)The district court erred in dismissing a declaratory judgment action in a Hatch-Waxman Act proceeding. The subsequent Paragraph IV filer had a legally cognizable interest in when the first-filer's exclusivity period began sufficient to create constitutional standing notwithstanding the existence of a preliminary injunction barring sale of the generic drug based on another patent. Although the district court retained discretion to decline jurisdiction, it erred in exercising its discretion.

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