Eli Lilly and Co. v. Sicor Pharmaceuticals, Inc. , 426 F. App'x 892 ( 2011 )

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NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
ELI LILLY AND COMPANY,
Plaintiff-Appellant, '
V.
SICOR PHARMACEUTICALS, INC.
(N0w KNOWN As TEVA PAREN'rERAL MED1c1NEs, INc.)
AND TEVA PHARMACEUTICALS USA, INC.,
Defendcmts-Cr0ss Appellants.
2010-1342, -1343
Appeals from the United States District C0urt for the
S0uthern District of Indiana in case n0. 06-CV-0238,
Judge Sarah Evans Barker.
ON MOTION
Before GAJARsA, MAYER and PROS'r, Circu,it Ju,dges.
GAJARSA, Circu,it Judge.
ORDER
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ELI LILLY V. SICOR PHARMA 2
Eli Lilly and Company (Eli Lilly) moves without oppo-
sition to lift the stay of proceedings and to dismiss appeal
no. 2010-1343 as moot Eli Lilly further moves to allow
its appeal no. 2010-1342 to be briefed. Because we agree
with Sicor Pharmaceuticals, Inc. et al. (Sicor) that Eli
Lilly’s appeal is controlled by our decision in Sun Pharm.
In,du,s., Ltd. u. Eli Lilly and Co., 611 F.3d 1381 (Fed. Cir.
2010), we summarily affirm.
The 2010-1342 appeal arises out of a Hatoh-Waxman
Act case in which Eli Lilly alleged patent infringement of
claim 7 of U.S. Patent No. 5,464,826. Sicor argued that
claim 7 was invalid for obviousness-type double patent-
ing. Sicor further argued that Eli Lilly was collaterally
estopped from arguing that obviousness-type double
patenting did not apply to claim 7 because Eli Lilly had
lost on that very argument in Sun Pharm,. Indus., Ltd. v.
Eli Lilly & Co., 647 F.Supp.2d 820 (E.D. Migh. 2009),
which was then on appeal before this court. Eli Lilly
appealed the collateral estoppel determination This
court stayed these appeals pending the outcome of the
Sun Pharm. appeal. In July 2010, this court affirmed the
trial court’s determination in Sun Pharm. that claim 7
was invalid for obviousness-type double patenting. In
November 2010, a combined petition for panel rehearing
and rehearing en banc was denied by the court. See Su,n
Pharm. Indus., Ltd. v. Eli Lilly and Co., 625 F.3d 719(Fed. Cir. 2010).
Under Blon,der-T0ngue v. Uniu. Found., 402 U.S. 313(1971), once a court determines that a patent is invalid in
a proceeding where the patent owner had a full and fair
opportunity to adjudicate the issue, the patent owner is
collaterally estopped from relitigating the issue in a
future case. Eli Lilly does not dispute that the trial court
correctly applied the collateral estoppel doctrine in this
case. lnstead, Eli Lilly’s sole objection to summarily
f
3 ELI LILLY V. SICOR PHARMA
affirming the district court’s judgment is that it "contin-
ues to believe that the Sun decision was wrongly decided
for all the reasons previously raised by Lilly and noted by
the dissenting judge [in the denial of en banc order.]”
Because the trial court’s decision is “so clearly correct as a
matter of law that no substantial question regarding the
outcome of the appeal exists,” Joshua v. Unitecl States, 17
F.3d 378, 380 (Fed. Cir. l994), we agree with Sicor that
summary affirmance is clearly appropriate here.
Accordingly, '
IT ls ORDERED THAT:
(1) The motion to lift the stay is granted
(2) The motion to dismiss appeal no. 2010-1343 as
moot is granted.
la
(3) The motion to summarily affirm appeal no. 2010-
1342 is granted.
(4) Each side shall bear its own costs
FOR THE COURT
HAY 2 5 2511 /s/ Jan Horbaly
Date J an Horbaly
Clerk
cc: Charles E. Lipsey, Esq.
E1izabe1;h J. H@11and, ESq. mca F!,} 9
519 ».r:sER,lr.aa.:°“
l‘|AY 26 2011
1ANHDRBA|.Y
6LERK