Federal Circuit Refuses to Rehear Caraco v. Forest

We previously reported that on April 1, in a 2-1 decision in Caraco v. Forest, the Federal Circuit held that an ANDA applicant may in some circumstances bring a declaratory judgment action for noninfringement even if the patentee has granted the applicant a covenant not to sue. Today, the Federal Circuit denied Forest's petition for rehearing or rehearing en banc, without opinion.

The Caraco v. Forest decision expanded declaratory judgment jurisdiction for ANDA applicants that have not been sued on an Orange Book-listed patent. Indeed, several ANDA applicants have filed DJ complaints since the decision.

It would not be surprising if Forest now appealed to the Supreme Court. However, given that the Court recently decided a declaratory judgment case, MedImmune v. Genentech, and that the Federal Circuit appeared to follow that decision in Caraco v. Forest, Supreme Court review seems unlikely.