Update in Amgen v. Sandoz: Additional Briefing on Bond Issue

The Federal Circuit recently received additional briefing on the bond issue from the parties in Amgen v. Sandoz, which remains under advisement.  Our earlier posts on Amgen, which can be found here, here, and here, describe the issues raised and the procedural background of this case of first-impression involving the patent disclosure provisions of the BPCIA.

On June 23, 2015, Sandoz submitted a letter of supplemental authority pursuant to Fed. R. App. P. 28 in which it noted that while the Court issued an injunction pending appeal and ordered briefing on the issue of a bond, no bond has yet been required.  Sandoz thus requested that the Court either require Amgen to immediately post a bond, or else lift the injunction pending appeal.

Sandoz further noted that Amgen has not disputed the bond requirement, and contended that Amgen has “ample resources” and “will not be harmed by posting a bond, even if the bond amount later turns out to be more than necessary.”  Sandoz added that a sufficient bond must be posted immediately, because otherwise “even if Sandoz ultimately prevails, Amgen could argue that Sandoz ‘has no action for damages in the absence of a bond.’”

Amgen responded in a letter submitted the next day, June 24, alleging (1) that Sandoz’s letter was not a proper submission under Fed. R. App. P. 28(j) because it did not cite any authorities that had come to its attention only recently (i.e. after briefing and oral argument, but before a decision), and (2) that Sandoz’s letter impermissibly “re-argued the merits of the parties’ briefing regarding imposition of a bond” without order or leave of the Court.

We will continue to monitor and report on the developments in this case as it makes its way through the appellate process.