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In March 2015, the state of Louisiana filed suit against AstraZeneca alleging antitrust violations based upon the company’s actions of using its patent rights to keep generic versions of Toprol-XL off the market in Louisiana.  AstraZeneca does have patent coverage, but the state argues that the patents are both invalid and unenforceable. Read the Original State Law Complaint filed in the Parish court of East Baton Rouge.

Now, AstraZeneca has filed a notice-of-removal of the state court lawsuit to Federal Court. The plea for removal argues that the case requires determination of a substantial question of patent law (as well as other federal questions).   Under 28 U.S.C. 1441(a), removal is allowed for “any civil action brought in a State court” so long as the Federal District Court has “original jurisdiction” over the case.  In general, this is thought of as “federal question jurisdiction.”

Since Louisiana is not alleging a federal cause of action, the courts will look to the Supreme Court’s analysis in Gunn v. Minton, 133 S.Ct. 1059 (2013) to determine whether the implicit Federal Questions are substantial enough to warrant divesting jurisdiction from the state court.  Gunn was a patent law malpractice action that required determination of a number of patent law issues (such as the experimental use exception to Section 102). In that case, however, the Supreme Court found that the the patent questions were not of sufficient importance to “the federal system as a whole.”

There are a number of ways to distinguish this case from Gunn. In particular, in Gunn the Supreme Court found it important that the outcome of the legal malpractice claim would have “no broader effects.”

[A state court decision on malpractice] will not stand as binding precedent for any future patent claim; it will not even affect the validity of Minton’s patent. Accordingly, there is no “serious federal interest in claiming the advantages thought to be inherent in a federal forum.”

Gunn (quoting Grable).

Here, the outcome of the Louisiana case could have a major impact on how courts across the country handle AstraZeneca and its patents, and how courts will consider allegations of patents improperly listed in the Orange Book.  This leads me to the tentative conclusion that the patent (and other federal) questions may well be substantial enough to allow for a Federal Question.  If so, the colorful Attorney General Buddy Caldwell may soon be face-to-face with the Federal Circuit. (Read the Notice of Removal).

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