{"id":1693,"date":"2017-08-10T12:25:12","date_gmt":"2017-08-10T16:25:12","guid":{"rendered":"https:\/\/patents.harnessip.com\/?p=1693"},"modified":"2017-08-12T10:57:26","modified_gmt":"2017-08-12T14:57:26","slug":"wait-your-turn-no-exception-to-final-judgment-rule-for-appeal-of-denial-of-motions-to-compel","status":"publish","type":"post","link":"https:\/\/patents.harnessip.com\/?p=1693","title":{"rendered":"Wait Your Turn: No Exception to Final Judgment Rule for Appeal of Denial of Motions to Compel"},"content":{"rendered":"

In Amgen Inc. v. Hospira, Inc.<\/a>, [2016-2179] (August 10,. 2017), the Federal Circuit dismissed Amgen’s appeal of the district court’s denial of its motion to compel for lack of jurisiction, and rejected Amgen’s petition for mandamus to compel the discovery.<\/p>\n

The parties\u2019 dispute arises from the disclosure requirements
\nof the BPCIA, which the Supreme Court recently explained:<\/p>\n

The BPCIA sets\u00a0forth a carefully calibrated scheme for preparing to adjudicate,\u00a0and then adjudicating, claims of [patent] \u00a0infringement resulting from the approval of \u201cbiological products\u201d\u00a0by the federal Food and Drug Administration (\u201cFDA\u201d).<\/p><\/blockquote>\n

Hospira is attempting to market a biosimilar to Amgen’s\u00a0EPOGEN\u00ae product, and was resisting disclosure of the cell culture medium used in the manufacture of its product, while Amgen was arguing that this was part of the\u00a0\u201cthe process . . .used to manufacture the biological product\u201d that the BPCIA required disclosure.<\/p>\n

The Federal Circuit noted that ordinarily,\u00a0an appeal must be from a \u201cfinal\u201d judgment that\u00a0ends the litigation on the merits and leaves nothing for
\nthe court to do but execute the judgment. The\u00a0collateral order doctrine provides a narrow exception to\u00a0this general rule, but the Federal Circuit found that the denial of Amgen’s motion to compel did not fall within this narrow exception because it was not “effectively unreviewable on appeal from a final judgment.<\/p>\n

Amgen alternatively sought\u00a0mandamus under the All Writs Act ordering the district\u00a0court to compel discovery. The Federal Circuit observed that mandamus is a drastic remedy\u00a0reserved for the most \u201cextraordinary causes.\u201d Amgen would have to show that it has no other adequate
\nmeans to attain the desired relief, and must demonstrate\u00a0that its right to the writ\u2019s issuance is \u201cclear and\u00a0indisputable.\u201d<\/p>\n

The Federal Circuit agreed with the district court that\u00a0Hospira\u2019s
\ncell-culture media is not relevant to any claim of infringement
\nof the patents asserted by Amgen or any of\u00a0Hospira\u2019s defenses or counterclaims. \u00a0The Federal Circuit rejected Amgen’s arguments that it could not have identified its cell culture patents pursuant to the\u00a0BPCIA procedures and obtain Hospira’s cell culture information pursuant to the BPCIA, and thus needed the discovery.<\/p>\n

The Federal Circuit found that the district court correctly denied Amgen\u2019s motion to\u00a0compel on the ground that the composition of Hospira\u2019s\u00a0cell-culture media was of \u201cno relevance to the patents that\u00a0are asserted,\u201d and that Amgen has not established a clear\u00a0and indisputable right to discovery of the information it\u00a0seeks. It therefore has not established the prerequisites\u00a0for this court to issue a writ of mandamus.<\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

In Amgen Inc. v. Hospira, Inc., [2016-2179] (August 10,. 2017), the Federal Circuit dismissed Amgen’s appeal of the district court’s denial of its motion to compel for lack of jurisiction, and rejected Amgen’s petition for mandamus to compel the discovery. … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[66,65],"tags":[],"class_list":["post-1693","post","type-post","status-publish","format-standard","hentry","category-bpcia","category-discovery"],"post_mailing_queue_ids":[],"_links":{"self":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/1693","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1693"}],"version-history":[{"count":1,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/1693\/revisions"}],"predecessor-version":[{"id":1694,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/1693\/revisions\/1694"}],"wp:attachment":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1693"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1693"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1693"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}