Altana Pharma AG v. Teva Pharmaceuticals USA, Inc., No. 10-1491 (Fed. Cir. Dec. 8, 2010) — Order on Motion

Norte: This order is nonprecedential. Anited States Court of Appeals

for the Federal Circuit

ALTANA PHARMA AG (NOW KNOWN AS NYCOMED

GMBH) AND WYETH (NOW KNOWN AS WYETH LLC),

Plaintiffs-Appellants,

Vv.

TEVA PHARMACEUTICALS USA, INC.,

TEVA PHARMACEUTICAL INDUSTRIES, LTD.,

TEVA PARENTAL MEDICINES, INE.,

SUN PHARMACEUTICAL INDUSTRIES, LTD.,

SUN PHARMACEUTICAL ADVANCED RESEARCH

CENTRE, LTD.,

AND SUN PHARMA GLOBAL, INC.,

Defendants,

and

KUDCO IRELAND LIMITED Aanp SCHWARZ

PHARMA, INC.,

Defendants-Appellants.

2010-1491

Appeal from the United States District Court for the District of New Jersey in consolidated case nos. 04-CV-2355, 05-CV-1966, 05-CV-3920, 06-CV-3672, and 08-CV-2877, Judge Jose L. Linares.

2ALTANA PHARMA v. TEVA PHARMA ²

ON MOTION

Before LOURIE, MAYER, and Dyk, Circuii Judges.

Dyk, Circuit Judge.

ORDER

KUDco Ireland Limited and Schwarz Pharma, Inc. (KUDco) move to stay proceedings in this appeal pending district court action. The court considers whether KUDco’s appeal should be dismissed as premature.

In this consolidated case, Altana Pharma AG and Wyeth sued the defendants for patent infringement. On July 16, 2010 and July 20, 2010, the United States District Court for the District of New Jersey -issued an “Order & Final Judgment” against KUDco on its defenses and counterclaims. However, the district court has not entered a final judgment as to all the parties and all the issues, and has not certified the order against KUDco pursuant to Fed. R. Civ. P. 54(b).

Because there are still claims pending before the district court, we deem the better course is to dismiss the appeal as premature. See Nystrom v. Trex Co., 339 F.3d 1347, 1350 (Fed. Cir. 2003). After the district court has adjudicated all the claims of all the parties, or entered a Rule 54(b) judgment, KUDco may file a timely appeal.

Accordingly, Tt Is ORDERED THAT: (1) KUDco’s motion is denied. (2) The appeal is dismissed.

33 ALTANA PHARMA v. TEVA PHARMA

(3) Each side shall bear its own costs. (4) All other pending motions are denied as moot.

For THE COURT DEC 0 8 2010

/si Jan Horbaly Date Jan Horbaly

Clerk

cc: William F. Lee, Esq.

William R. Zimmerman, Esq.

s20

U.S. COURTF OILFE ADPPEALS FOR

THE FEDERAL CIRCUIT

DEC 08 2010

JAN RORBALY

CLERK

Text extracted from the official PDF and reflowed for reading. It is not a certified transcript — the PDF linked above is the authoritative document.