1259 Ortho-McNeil Pharmaceutical, Inc. v. Cobalt Pharmaceuticals Inc.

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-1258, -1259
ORTHO-MCNEIL PHARMACEUTICAL, INC.,
Plaintiff-Appellee,
v.
COBALT PHARMACEUTICALS INC.,
Defendant-Appellant.
Harry J. Roper, Jenner & Block LLP, of Chicago, Illinois, argued for plaintiff-
appellee. With him on the brief were Aaron A. Barlow and Eric L. Lohrenz, of Chicago,
Illinois, and Marc A. Goldman, of Washington, DC.
Deanne M. Mazzochi, Rakoczy Molino Mazzochi Siwik LLP, of Chicago, Illinois,
argued for defendant-appellant. With her on the brief were William A. Rakoczy and
Natalie G. Mitchell.
Appealed from: United States District Court for the District of New Jersey
Judge Stanley R. Chesler

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-1258, -1259
ORTHO-MCNEIL PHARMACEUTICAL, INC.,
Plaintiff-Appellee,
v.
COBALT PHARMACEUTICALS INC.,
Defendant-Appellant.
Appeal from the United States District Court for the District of New Jersey in case no.
05-CV-4961 and 05-CV-5920, Judge Stanley R. Chesler.
___________________________
DECIDED: March 31, 2008
___________________________
Before MICHEL, Chief Judge, RADER and LINN, Circuit Judges.
RADER, Circuit Judge.
Instead of presenting its arguments to the district court, Cobalt Pharmaceuticals
Inc. ("Cobalt") stipulated that it would be bound by the district court's final judgment
order in the related ongoing litigation Ortho McNeil Pharmaceutical, Inc. v. Mylan
Laboratories Inc., Case No. 04-cv-1689 (SRC) (D.N.J.) ("Ortho v. Mylan"). Accordingly,
when the district court entered its judgment permanently enjoining Mylan from infringing
Ortho McNeil's U.S. Patent No. 4,513,006 ('006) covering topiramate, it also entered
final judgment against Cobalt. Cobalt retained its rights to appeal to this court, but
stipulated that such an appeal would be based on the record of the Ortho v. Mylan
litigation.

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2007-1258, -1259 2
For the reasons set forth in the simultaneously issued opinion Ortho McNeil
Pharmaceutical, Inc. v. Mylan Laboratories, No. 2007-1223, this court affirms the district
court's judgment against Cobalt. Because Cobalt's argument that claim 1 is rendered
indefinite by the inclusion of the phrase "may be" in the second clause that describes
R2 and R3 and/or R4 and R5 when they are together was not presented to the district
court, and because Cobalt stipulated that its appeal be based on the record in Ortho v.
Mylan, this court declines to consider that argument now.
AFFIRMED

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