Hatch/Rader-Waxman

It would have been interesting to be a fly on the wall during the panel conference that followed the oral argument of  Momenta Pharmaceuticals et al. v. Amphastar et al., App. No. 2012-1062 (Fed. Cir. Aug. 3, 2012).  In that decision, Judges Moore and Dyk formed the majority while Chief Judge Rader formed the dissent.  In Chief Judge Rader’s dissent, he notes his disagreement with the majority and remarks that he was present during the drafting of the statutory provision in question.  See C.J. Rader’s dissent in Momenta at page 10 (“The authors of this section (and I hesitate to add that I was present through this legislative process) did not imagine that § 271(e)(1) would allow continuous, commercial infringing sales during any portion of the life of the patent.“)  This would echo a remark Chief Judge Rader made during the oral argument:  [Listen].  Before appointment to the federal bench, Chief Judge Rader served as Minority and Majority Chief Counsel to Subcommittees of the U.S. Senate Committee on the Judiciary.

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