Supreme Court Denies Aventis' Cert Petition in Lovenox Case

Includes: SNY, TEVA
by: Aaron F. Barkoff

Aventis Pharma v. Amphastar and Teva, S. Ct. Appeal No. 08-937 (2009)

The Supreme Court on Monday denied Aventis Pharma's (NYSE:SNY) cert petition in a long-running dispute with generic biopharmaceutical manufacturer Amphastar. In its petition, Aventis had asked the Court to review a Federal Circuit decision affirming the unenforceability of its patent on Lovenox. In particular, Aventis asked the Court to overturn the Federal Circuit's "sliding scale" doctrine-–the doctrine that treats the two prongs of the inequitable conduct inquiry (materiality and intent) as inversely related to each other. The doctrine allows a court to infer that a patentee has acted with deceptive intent if the defendant can show that the alleged misconduct is highly material.

Amphastar and co-defendant Teva (NYSE:TEVA) opposed Aventis's petition. First, they suggested that the "sliding scale" doctrine merely reflects the court's routine use of circumstantial evidence. When alleged misconduct is highly material, they asserted, the circumstantial evidence of deceptive intent is stronger. Second, Amphastar and Teva argued that Aventis had bypassed the opportunity to question the "sliding scale" doctrine because it never properly raised the issue during its Federal Circuit appeal. Aventis responded that the Court could still entertain the issue because the Federal Circuit's opinion demonstrated that the appellate panel had relied on the "sliding scale" standard in reaching its decision.

While the petition was pending, the Federal Circuit began pulling back the reins a bit on the "sliding scale" doctrine. Last month, Judge Linn wrote a stinging concurrence in Larson Mfg. v. Aluminart Prods (.pdf), criticizing the doctrine. Earlier this month, Judge Moore (a member of the panel that heard the Aventis case) seemed to question the "sliding scale" doctrine in Ariad v. Eli Lilly (.pdf).

Perhaps the Supreme Court believed that the Federal Circuit was in the process of correcting itself on this issue. Or maybe the Supremes did not want to grant cert on an issue that the petitioner had largely ignored in its earlier appeal. In any event, the "sliding scale" doctrine remains intact.

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