Via SCOTUSblog, the Supreme Court today denied review of Apotex v. Pfizer, in which Apotex had asked the Court to consider whether listing patents in the Orange Book creates a justiciable controversy, thereby allowing a generic drug company to file a declaratory judgment action for noninfringement or invalidity.
Last May, the Court asked the Solicitor General for his views on whether the Court should grant certiorari in the case, just as the Court has often done in recent patent cases. However, the Solicitor General’s office had not yet filed its brief when the Court denied review of the case today.
Moreover, the Court denied Apotex’s cert petition without ruling on Pfizer’s recent motion arguing that the case had become moot. Pfizer argued that the case was moot because Teva had begun selling a generic version of Zoloft, the drug involved in the dispute.
Because the Court denied Apotex’s petition, the Federal Circuit ruling stands: merely listing patent information in the Orange Book does not create a justiciable controversy.
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