Covenant not to sue moots first of two challenges to subject matter jurisdiction
Abbott Laboratories, et al., v. Johnson and Johnson, et al., C.A. No. 06-613-SLR, September 27, 2007.
Robinson, J. Defendants’ first motion to dismiss for lack of subject matter jurisdiction is denied as moot. Decision on second motion filed after covenant not to sue was executed remains pending.
This action seeks a declaratory judgment that two patents are invalid and not infringed by plaintiffs. Defendants made statements to industry analysts threatening to sue plaintiffs regarding the launch of a new drug-eluting coronary stent called “Xience V.” Defendants petitioned the PTO to make special continuation applications, stating that, if issued, they could immediately assert against Plaintiffs. Defendants filed a complaint in S.D.N.Y. alleging tortious interference presumably to interfere with plaintiff’s imminent launch. Defendants moved to dismiss for lack of controversy. Cordis executed a covenant not to sue regarding Xience V and moved to dismiss again for lack of controversy.
A copy of the full opinion is available here.
