Nos. 2009-1020, 2009-1096.

580 F.3d 1340 (2009)

AMGEN INC., Plaintiff-Cross Appellant, v. F. HOFFMANN-LA ROCHE LTD, Roche Diagnostics GMBH, and Hoffmann-LA Roche Inc., Defendants-Appellants.

United States Court of Appeals, Federal Circuit.

September 15, 2009.

Attorney(s) appearing for the Case

Lloyd R. Day, Jr., Day Casebeer Madrid & Batchelder LLP, of Cupertino, CA, argued for plaintiff-cross appellant. With him on the brief were David M. Madrid, Linda A. Sasaki-Baxley and Jonathan D. Loeb. of counsel on the brief were Stuart L. Watt, Wendy A. Whiteford and Erica S. Olson, Amgen Inc., of Thousand Oaks, CA; Cecilia H. Gonzalez and Margaret D. MacDonald, Howrey LLP, of Washington, DC. Of counsel was Christian E. Mammen, Day Casebeer Madrid & Batchelder LLP, of Cupertino, CA.

Leora Ben-Ami, Kaye Scholer LLP, of New York, NY, argued for defendants-appellants. With her on the brief were Thomas F. Fleming, Patricia A. Carson, Christopher T. Jagoe, Sr. and Howard S. Suh. Of counsel on the brief were Lee Carl Bromberg, Timothy M. Murphy and Julia Huston, Bromberg & Sunstein LLP, of Boston, MA. Of counsel were Daniel Forchheimer, Matthew McFarlane, and Krista M. Rycroft, Kaye Scholer LLP, of New York, NY; and Kimberly J. Seluga, Nicole Rizzo Smith and Keith E. Toms, Bromberg & Sunstein LLP, of Boston, MA.

Before MAYER, CLEVENGER, and SCHALL, Circuit Judges.

SCHALL, Circuit Judge.

This is a patent case. Amgen Inc. ("Amgen") is the owner of U.S. Patent Nos. 5,441,868 ("the '868 patent"), 5,547,933 ("the '933 patent"), 5,618,698 ("the '698 patent"), 5,756,349 ("the '349 patent"), and 5,955,422 ("the '422 patent"). The patents relate to the production of the protein erythropoietin ("EPO") using recombinant deoxyribonucleic acid ("DNA") technology. All five patents share a common...

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