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Consent Judgment Not Reviewable Without Effect and Context of Claim Construction Ruling


In G. David Jang, M.D. v. Boston Scientific Corp. et al. (No. 2007-1385; July 15, 2008), a Federal Circuit panel vacates and remands a consent judgment for clarification.

In a breach of contract action, the parties dispute whether certain products are "covered," thus requiring additional payments under a preexisting license agreement. After a claim construction order, a district court entered a consent judgment of no breach of contract (i) based on the parties' stipulation that licensor could not prove the products were "covered" under the district court's claim construction order and (ii) to preserve licensor's right to appeal the claim construction order. Both the stipulation and the consent judgment failed to explain how the claim construction rulings related to the allegedly "covered" products.

The Federal Circuit finds the consent judgment ambiguous—and thus not reviewable on the record before it—because (i) it is "impossible" to discern how the various claim construction rulings affect infringement and (ii) the consent judgment provides no "factual context" on how the claim construction rulings relate to the allegedly "covered" products. On the first point, the Federal Circuit warns that it will not render "advisory opinions" on claim construction issues that do not affect a live infringement controversy. In addressing the second point, the Federal Circuit remains reluctant to review claim constructions in a vacuum without the "proper context" of the products at issue.


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Mark Supko
Partner – Washington, D.C.
Phone: +1 202.624.2734