Nos. 2007-1400, 2007-1446.

566 F.3d 1282 (2009)

ABBOTT LABORATORIES, Plaintiff-Appellant, and Astellas Pharma, Inc., Plaintiff-Appellant, v. SANDOZ, INC., Defendant-Appellee, and Sandoz GMBH, Defendant, and Teva Pharmaceuticals USA, Inc. and Teva Pharmaceutical Industries, Ltd., Defendants-Appellees, and Ranbaxy Laboratories, Ltd. and Ranbaxy, Inc., Defendants, and Par Pharmaceutical Companies, Inc. and Par Pharmaceutical, Defendants. Lupin Limited, Plaintiff/Counterclaim Defendant-Appellee, and Lupin Pharmaceuticals, Inc., Counterclaim Defendant-Appellee, v. Abbott Laboratories, Defendant/Counterclaimant-Appellant, and Astellas Pharma, Inc., Defendant/Counterclaimant-Appellant.

United States Court of Appeals, Federal Circuit.

May 18, 2009.

Attorney(s) appearing for the Case

James F. Hurst, Winston & Strawn LLP, of Chicago, IL, argued for all plaintiffs-appellants in 2007-1400 and defendants/counterclaimants-appellants in 2007-1446. With him on the briefs for Abbott Laboratories were Todd J. Ehlman, Kathleen B. Barry, and Ivan M. Poullaos, and Steffen N. Johnson, of Washington, DC. Of counsel on the brief for Abbott Laboratories were William F. Cavanaugh, Jr., Jeffrey I.D. Lewis, and Stuart E. Pollack, Patterson Belknap Webb & Tyler LLP, of New York, NY. Of counsel was John C. Knapp. On the briefs for Astellas Pharma, Inc., were Richard D. Kelly, Stephen G. Baxter and Frank J. West, Oblon, Spivak, McClelland, Maier & Neustadt, P.C., of Alexandria, VA.

Meredith Martin Addy, Brinks, Hofer, Gilson & Lione, of Chicago, IL, argued for defendant-appellee Sandoz, Inc. With her on the brief were Thomas J. Filarski, Mark H. Remus, C. Noel Kaman, and Laura A. Lydigsen. Of counsel was Rashad L. Morgan.

Thomas J. Meloro, Jr., Wilkie Farr & Gallagher LLP, of New York, NY, argued for defendants-appellees Teva Pharmaceuticals USA, Inc., et al. With him on the brief was Neal K. Feivelson. Of counsel were Michael W. Johnson and Alexander H. Swirnoff.

Deanne M. Mazzochi, Rakoczy Molino Mazzochi Siwik, LLP, of Chicago, IL, argued for plaintiff/counterclaim defendant-appellee Lupin Limited and counterclaim defendant-appellee, Lupin Pharmaceuticals, Inc. in 2007-1446. With her on the brief were William A. Rakoczy, Paul J. Molino, and Amy D. Brody.

Before RADER, PLAGER, and BRYSON, Circuit Judges. MICHEL, Chief Judge, and RADER, BRYSON, GAJARSA, LINN, DYK, PROST, and MOORE, Circuit Judges, have joined Section III.A.2 of the opinion. Dissenting opinion as to Section III.A.2 filed by NEWMAN, Circuit Judge, in which MAYER and LOURIE, Circuit Judges, join. Dissenting opinion filed by LOURIE, Circuit Judge. SCHALL, Circuit Judge, did not participate as a member of the en banc court.

RADER, Circuit Judge.

In this case, the same patent, U.S. Patent No. 4,935,507 (the '507 patent), occasions litigation in both the United States District Court for the Eastern District of Virginia and the United States District Court for the Northern District of Illinois. The Virginia District Court granted the motion of Lupin Ltd. and Lupin Pharmaceuticals Inc. (collectively Lupin) for summary judgment of noninfringement. In the other case, the Illinois District...


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