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Aventis Pharma S.A. v. Hospira, Inc.

Aventis Pharma S.A. v. Hospira, Inc.

United States Court of Appeals for the Federal Circuit

March 24, 2011, Decided

2011-1018, -1047

Opinion

 [***1191]   [*1342]  ON MOTION

Moore, Circuit Judge.

ORDER

Aventis Pharma S.A. and Sanofi-Aventis U.S., LLC (Aventis) move to dismiss appeal no. 2011-1047 as an improper cross-appeal. Apotex Inc. and Apotex Corp. (Apotex) oppose. Aventis replies.

Aventis sued Apotex for patent infringement.  [**2] That case was consolidated with another suit against Hospira Inc. involving the same patents. On September 27, 2010, the district court entered final judgment in favor of Apo-tex and Hospira, finding that all the asserted claims of the patents in suit were invalid for obviousness and unenforceable due to inequitable conduct. Aventis ap-pealed to this court. Apotex filed a "protective" cross-appeal to preserve its ability to challenge the district court's finding that some of the asserted claims were not invalid for double-patenting, in the event that this court vacated and reversed the district court's judgment finding Apotex's patents invalid for obviousness and unenforceable due to inequitable conduct.

On November 1, 2010, Aventis contacted Apotex and requested that it voluntarily withdraw the "protective" cross-appeal. Aventis explained that our Practice Notes to Federal Rule of Appellate Procedure 28.1 explicitly warn against filing a cross-appeal that does not seek to modify or overturn the judgment of the trial court. Aventis also pointed out that our precedent in TypeRight indicates that it is improper to use a cross-appeal to seek review of either non-infringement or alternative  [**3] invalidity arguments when the relevant claims of a patent are found invalid. TypeRight Keyboard Corp. v. Microsoft Corp., 374 F.3d 1151, 1156-57 (Fed. Cir. 2004). Aventis advised Apotex that if forced to move for dismissal of the cross-appeal, Aventis will seek the attorneys' fees and costs incurred in connection with the dismissal.

In an email dated November 3, 2010, Apotex ex-plained that it still believed its  [*1343]  cross-appeal was proper, and claimed (without citation or explanation) that TypeRight could be distinguished. It also claimed (again without citation) that Federal Circuit precedent supported their position, and that other appellate courts allow conditional cross-appeals. Aventis subsequently moved to dismiss the cross-appeal.

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637 F.3d 1341 *; 2011 U.S. App. LEXIS 6020 **; 98 U.S.P.Q.2D (BNA) 1190 ***; 79 Fed. R. Serv. 3d (Callaghan) 185

AVENTIS PHARMA S.A. AND SANOFI-AVENTIS U.S., LLC, Plaintiffs-Appellants, v. HOSPIRA, INC., Defendant-Appellee, and APOTEX INC. AND APOTEX CORP., Defendants-Cross Appellants.

Subsequent History: Related proceeding at Aventis Pharma S.A. v. Sandoz Inc., 2011 U.S. App. LEXIS 10062 (Fed. Cir., May 17, 2011)

Motion granted by Aventis Pharma S.A. v. Hospira, Inc., 2011 U.S. App. LEXIS 11182 (Fed. Cir., June 2, 2011)

Prior History:  [**1] Appeals from the United States District Court for the District of Delaware in consolidated case nos. 07-CV-0721 and 08-CV-0496, Chief Judge Gregory M. Sleet.

Aventis Pharma S.A. v. Hospira, Inc., 2011 U.S. App. LEXIS 1997 (Fed. Cir., Jan. 31, 2011)

CORE TERMS

cross-appeal, invalid, patents