For the past three years Maryland-based MedImmune Inc. has been trying to have it both ways.
While paying royalties to license a patent from Genentech Inc., MedImmune also had been suing in attempt to invalidate that same patent. The only reason it continued to pay the royalties was out of fear the California-based biotech company would sue for infringement. The district court threw out MedImmune’s declaratory judgment suit, and the Federal Circuit affirmed. Both courts held that because MedImmune was a licensee in good standing, it couldn’t reasonably fear that Genentech would sue it for patent infringement–so there was no “case or controversy” as required under Article III of the Constitution.
