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October 11, 2007



The Federal Circuit seems to be missing something here. Did Judge Posner have the authority in the original case to issue an injunction that would have included filing of a subsequent ANDA? And if not, how does this mesh with the fact that filing an ANDA gives an NDA filer standing to sue for infringement? If the CAFC is going to engage in such a hyper-textualist rendering of the statute, then Congress ought to change the law to stop the kinds of collusive ANDA filings in which Apotex engaged here.

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