Origins of the Theory that the “Patent Dance” Might Not Be Required: Omission of Process Patents

I recently wrote a preliminary reaction to the Supreme Court’s Sandoz v. Amgen decision on Health Affairs Blog.  This was the Court’s first foray into the Biologics Price Competition and Innovation Act (BPCIA), which created a pathway for licensure of biosimilar biologics.  As my essay for Health Affairs notes, the issues presented by this litigation are not entirely resolved.  There is fodder for a great deal of further discussion.

Today I am starting with the Court’s ruling that Amgen was not entitled to a federal injunction ordering Sandoz to share its marketing application and manufacturing information with Amgen.  The topic here is the origin of the argument that Sandoz made to the Court — the omission of manufacturing process patents from the declaratory judgment provision.

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