Copan Italia SPA v. Puritan Med. Prods. Co. LLC, Appeal No. 2022-1943 (Fed. Cir. May 14, 2024)

The Federal Circuit’s only precedential opinion concerning a patent case this week had nothing to do with patent law. Instead, it concerned whether a party could claim immunity under the COVID-19-related Pandemic Readiness and Emergency Preparedness Act (“PREP Act”).

The case focused on allegations of patent infringement for flocked swabs used for collecting biological specimens. The case was filed in 2018. When the COVID-19 pandemic hit in 2020, the case was stayed. Once the stay was lifted, Puritan asked the trial court to find it immune from suit under the PREP Act with regard to certain products that were made for the Air Force. The district court denied the motion to dismiss, finding too many factual disputes about whether and what products were needed for the Air Force contract. The district court did allow Puritan to include the PREP Act as an affirmative defense in an amended answer.

Puritan appealed the denial of the motion to dismiss, and the Federal Circuit found it lacked jurisdiction under the collateral order doctrine. To fit within the collateral order exception, a district court order must “[1] ‘conclusively determine the disputed question,’ [2] ‘resolve an important issue completely separate from the merits of the action,’ and [3] ‘be effectively unreviewable on appeal from a final judgment.’”

Here, the district court had not conclusively determined anything, finding instead that there were factual issues that could not be resolved at the motion-to-dismiss stage.

The opinion can be found here.

By Nika Aldrich