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ARTICLE · 02 APRIL 2004

Pre-Filing Infringement Analysis is "Key Factor" to Avoiding Rule 11 Sanctions

McDermott Will & Emery
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The U.S. Court of Appeals for the Federal Circuit confirmed that the Rule 11 requirements of reasonable pre-filing investigation may be satisfied by an "infringement analysis" performed prior to filing a patent infringement suit.

United StatesIntellectual Property
David Jafari
David Jafari
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The U.S. Court of Appeals for the Federal Circuit confirmed that the Rule 11 requirements of reasonable pre-filing investigation may be satisfied by an "infringement analysis" performed prior to filing a patent infringement suit. Q-Pharma, Inc. v. The Andrew Jergens Company, Case No. 03-1184 (Fed. Cir. Mar. 8, 2004) (Lourie, J.).

Q-Pharma filed suit against Jergens alleging that Jergens’ sale of its "Cruel Lotion with Coenzyme Q10" infringed the Q-Pharma patent directed to a method for therapeutically treating damaged tissue by administering a composition containing Coenzyme Q10 (C0Q10). The label on the Jergens’ lotion prominently displays the term "Q10."

During discovery, Q-Pharma repeatedly demanded information regarding the contents of the Jergens’ lotion. Jergens refused to comply. Eventually, Jergens revealed that its lotion contained an almost negligible amount of Q10. Upon learning that information, Q-Pharma abandoned its suit.

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