Is A Substantial Question Of Validity Enough?

Law360, New York (December 1, 2008, 12:00 AM EST) -- The recent decision in Abbott Laboratories v. Sandoz Inc. (Fed. Cir. Oct. 21, 2008) highlights an ongoing debate within the Federal Circuit over the proper test for determining when an accused infringer has mounted a sufficient challenge to a patent’s validity to defeat a preliminary injunction motion.

The author of the majority opinion, Judge Newman, takes issue with the court’s practice of looking to whether the accused infringer has raised a “substantial question” regarding validity and asserts that this test conflicts with controlling precedent.

Instead, she...
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