BOEHRINGER INGELHEIM INTERNATIONAL GMBH and BOEHRINGER INGELHEIM PHARMACEUTICALS, INC. v. MYLAN PHARMACEUTICALS, INC. and MYLAN INC.

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

BOEHRINGER INGELHEIM INTERNATIONAL
GMBH and BOEHRINGER INGELHEIM
PHARMACEUTICALS, INC.,
Plaintiffs-Appellants,
v.
MYLAN PHARMACEUTICALS, INC.
and MYLAN INC.,
Defendants-Appellees.

2009-1402

Appeal from the United States District Court for the
District of New Jersey in case no. 09-CV-366, Judge Faith
S. Hochberg.

ON MOTION

Before RADER, Chief Judge, BRYSON and MOORE, Circuit
Judges.

RADER, Chief Judge.

ORDER

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Boehringer Ingelheim International GmbH and Boe-
hringer Ingelheim Pharmaceuticals, Inc. move without
opposition to vacate the May 12, 2009 order of the United
States District Court of the District of New Jersey in 09-
CV-366 and remand for further proceedings .*

The parties previously moved to stay proceeding in
this appeal pending disposition of appeal 2009-1032. In
that appeal, this court recently vacated the judgment of
the United States District Court for the District of Dela-
ware that had held the underlying patent invalid and
remanded for further proceedings.

In the present appeal, 2009-1402, the District Court
for the District of New Jersey considered the effect of the
Delaware district court's determination and granted the
defendants' motion to dismiss the complaint filed by
Boehringer involving the same patent, based upon issue
preclusion and claim preclusion. The parties agree that
due to the disposition of 2009-1032, the district court's
order must be vacated and the case remanded for further
proceedings.

Upon consideration thereof,

IT IS ORDERED THAT:

(1) The motion is granted. The district court's order
granting the motion to dismiss is vacated and the case is
remanded for further proceedings.

(2) Each side shall bear its own costs.

The district court's order was signed by the dis-
trict court judge on May 12, 2009 and filed by the district
court on May 13, 2009.

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FOR THE COURT

AUG - 2 2010
Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc: Bruce M. Wexler, Esq.
Shannon M. Bloodworth, Esq.
$20

Issued As A Mandate:

AUG 2 2010

FILED
U.S. COURT OF APPEALS POR
THE FEDERAL CIRCUIT
AUG 02 2010

JAN HORBALY
CLERK