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On Nov. 5, 2013, a divided Court of Appeals for the Federal Circuit declined en banc review of its July 2, 2013, decision in Fresenius USA, Inc. v. Baxter International Inc. (“Fresenius II”). In Fresenius II, the Federal Circuit had ruled that the cancellation of patent claims by the United States Patent and Trademark Office (USPTO) under the USPTO’s statutory reexamination authority must be given effect in pending infringement litigation.

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