Altana Pharma Ag (now Known As Nycomed Gmbh) and Wyeth (now Known As Wyeth LLC) v. Teva Pharmaceuticals USA, Inc., Teva Pharmaceutical Industries, Ltd., Teva Parental…

# NOTE: This order is nonprecedential. United 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,

v.
TEVA PHARMACEUTICALS USA, INC.,
TEVA PHARMACEUTICAL INDUSTRIES, LTD.,
TEVA PARENTAL MEDICINES, INC.,
SUN PHARMACEUTICAL INDUSTRIES, LTD.,
SUN PHARMACEUTICAL ADVANCED RESEARCH
CENTRE, LTD.,
AND SUN PHARMA GLOBAL, INC.,
Defendants,
and
KUDCO IRELAND LIMITED AND 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.

<!-- PageBreak -->

<!-- PageHeader="ALTANA PHARMA v. TEVA PHARMA" -->

## ON MOTION

Before LOURIE, MAYER, and DYK, Circuit 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,

IT IS ORDERED THAT:

(1) KUDco's motion is denied.

(2) The appeal is dismissed.

<!-- PageBreak -->

<!-- PageHeader="ALTANA PHARMA v. TEVA PHARMA" -->

(3) Each side shall bear its own costs.

(4) All other pending motions are denied as moot.

DEC 0 8 2010

FOR THE COURT /s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: William F. Lee, Esq.
William R. Zimmerman, Esq.

s20

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
DEC 0 8 2010

JAN HORBALY
CLERK