Federal Circuit Signals Change in Course in “Skinny Label” Saga

As predicted in our October 29th post, Teva sought rehearing en banc of the Federal Circuit’s re-instatement of a $235 million jury verdict against it for induced infringement despite its “skinny label” carve out of the patented use.  In the original ruling the Federal Circuit held that Teva was liable for damages during a period of time in which it had a Section viii carveout that specifically excluded the claimed indication.  Today we write to note the rehearing of that decision will take place, not en banc, but by the same panel as before, with oral argument set for February 23rd.  The prior opinions were withdrawn in their entirety, although oral argument will be limited to “whether there is substantial evidence to support the jury’s verdict of induced infringement during the time period from January 8, 2008 through April 30, 2011.”  This time frame corresponds to the period of time before the FDA required Teva to add the previously carved-out indication (congestive heart failure) covered by the claims.  This does not mean the Federal Circuit will not be changing course with respect to other aspects of its original decision.  Instead, the Court found that the other issues had been “sufficiently briefed.”