Allergan, Inc. v. Sandoz Inc., Alcon Laboratories, Inc., Alcon Research Ltd., Alcon, Inc.

# NOTE: This order is nonprecedential.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

ALLERGAN, INC.,
Plaintiff-Appellee,
V.
SANDOZ INC., ALCON LABORATORIES, INC.,
ALCON RESEARCH LTD., ALCON, INC., AND
FALCON PHARMACEUTICALS, LTD.,
Defendants-Appellants,
AND
APOTEX INC. AND APOTEX CORP.,
Defendants-Appellants,
AND
WATSON LABORATORIES, INC.,
Defendant-Appellant.

2011-1619, -1620, -1635, -1639

Appeals from the United States District Court for the
Eastern District of Texas in consolidated case No. 09-CV-
0097, Judge T. John Ward.

<!-- PageBreak -->

<!-- PageHeader="ALLERGAN v. SANDOZ" -->

ALLERGAN INC.,
Plaintiff-Appellant,
V.
SANDOZ INC., ALCON LABORATORIES, INC.,
ALCON RESEARCH LTD., ALCON, INC., AND
FALCON PHARMACEUTICALS, LTD.,
Defendants-Appellees,
AND
APOTEX INC. AND APOTEX CORP.,
Defendants-Appellees,
AND
WATSON LABORATORIES, INC.,
Defendant-Appellee.
\-

2012-1005, -1013

Appeals from the United States District Court for the
Eastern District of Texas in consolidated case No. 09-CV-
0097, Judge T. John Ward.

## ON MOTION

Before BRYSON, MAYER, and LINN, Circuit Judge.

BRYSON, Circuit Judge.

ORDER

Sandoz Inc., Alcon Laboratories, Inc., Alcon Research
Ltd., Alcon, Inc., and Falcon Pharmaceuticals, Ltd. (col-

<!-- PageBreak -->

<!-- PageHeader="ALLERGAN v. SANDOZ" -->

lectively, Sandoz) move to dismiss Allergan, Inc.'s cross-
appeal. Allergan opposes. Sandoz replies.

Allergan brought this suit under the Hatch-Waxman
Act. Allergan's complaint charged Sandoz and the other
defendants with infringement of U.S. Patent Nos.
7,030,149, 7,320,976, 7,323,463, and 7,642,258. The
complaint sought to enjoin the defendants from marking a
generic version of Allergan's Combigan® product.

The district court granted summary judgment of non-
infringement as to claims 1-3 of the '149 patent, but found
that Sandoz's generic product infringed claim 4 of the '149
patent and infringed asserted claims of the other patents.
The district court also found that the claims held to be
infringed were valid. According to Allergan, however, the
district court did not address validity issues relating to
claims 1-3 of the '149 patent in light of the court's non-
infringement determination. As a result, the court en-
joined Sandoz from marking its generic version of the
Combigan® product.

Sandoz has appealed from the final judgment of in-
fringement and validity, and Allergan filed cross-appeals
relating to the summary judgment of non-infringement as
to claims 1-3 of the '149 patent. "A party may cross-
appeal if adversely affected by the appealed judgment in
some particular which it seeks to have modified."
TypeRight Keyboard Corp. v. Microsoft Corp., 374 F.3d
1151, 1156 (Fed. Cir. 2004). A cross appeal may only be
filed "when a party seeks to enlarge its own rights under
the judgment or to lessen the rights of its adversary under
the judgment." Bailey v. Dart Container Group Corp., 292
F.3d 1360, 1362 (Fed. Cir. 2002).

The court agrees that a cross-appeal would be im-
proper under these circumstances. Because the district
court enjoined Sandoz from marketing a generic version of

<!-- PageBreak -->

<!-- PageHeader="ALLERGAN v. SANDOZ" -->

the Combigan® product based on the infringement of
claim 4 of the '149 patent, a cross-appeal from the non-
infringement determinations as to claims 1-3 of the same
patent could not result in the enlargement of Allergan's
rights under the judgment. As long as Sandoz is found to
infringe at least one claim of the '149 patent, the judg-
ment-the injunction against marketing a generic version
of Combigan-will remain the same.

Allergan is of course free to raise arguments regard-
ing claim construction and non-infringement as to claims
1-3 of the '149 patent in its response brief. To the extent
that Allergan wishes to argue that the district court erred
in not addressing validity issues as to claims 1-3 of the
'149 patent, those arguments too can be raised in the
response brief. However, since there is currently no
adverse judgment on validity of those claims to Allergan,
a cross-appeal would be improper.

Accordingly,

IT IS ORDERED THAT:

(1) The motion to dismiss the cross-appeal is granted.
Appeal nos. 2012-1005 and 2012-1013 are dismissed.

(2) Each side shall bear its own costs in 2012-1005
and 2012-1013.

(3) The revised official caption is reflected above.

FOR THE COURT

APR 0 4 2012

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
APR 0 4 2012
JAN HORBALY
CLERK

<!-- PageBreak -->

<!-- PageHeader="ALLERGAN v. SANDOZ" -->

cc: Deanne E. Maynard, Esq.
Jonathan E. Singer, Esq.
Robert B. Breisblatt, Esq.
Gary Edward Hood, Esq.

s24

Issued As A Mandate (as to 2012-1005, -1013 only):
APR 0 4 2012