Thursday, March 24, 2011

CAFC: "Apotex’s conduct in this case is particularly egregious"

One has to wonder "why" Apotex filed a cross-appeal in the case Aventis v. Apotex.
Apotex had won at the district court level: all the asserted claims of
the patents in suit were invalid for obviousness and
unenforceable due to inequitable conduct.
The CAFC, in dismissing the cross-appeal noted:

Apotex’s conduct in this case is particularly egregious
given that Aventis explained that TypeRight prohibits
exactly the type of cross-appeal filed
. Given an opportu-
nity to withdraw the improper cross-appeal, Apotex
instead claimed it could distinguish TypeRight from the
present case. Apotex’s distinctions are unavailing:
merely styling their appeal as a conditional cross-appeal
does not distinguish TypeRight.

Similarly, Apotex’s argument that TypeRight is lim-
ited to cases where the trial court previously declined to
reach the other grounds for affirming the judgment is
incorrect. TypeRight explains, as a general matter, that a
finding of invalidity means there is “no basis for a cross-
appeal” of non-infringement or additional claims of inva-
lidity. TypeRight, 374 F.3d at 1157.

Yes, Aventis had contacted Apotex:

Aventis also pointed out that our precedent in TypeRight
indicates that it is improper to use a cross-appeal to seek
review of either non-infringement or alternative invalidity
arguments when the relevant claims of a patent are found
invalid. TypeRight Keyboard Corp. v. Microsoft Corp., 374
F.3d 1151, 1156-57 (Fed. Cir. 2004).

And, to all those lawyers who say email can't be used as
a communication medium:

In an email dated November 3, 2010, Apotex ex-
plained that it still believed its cross-appeal was proper,
and claimed (without citation or explanation) that
TypeRight could be distinguished. It also claimed (again
without citation) that Federal Circuit precedent sup-
ported their position, and that other appellate courts
allow conditional cross-appeals. Aventis subsequently
moved to dismiss the cross-appeal.

As to cross-appeals:

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 Corp., 292 F.3d 1360, 1362 (Fed. Cir. 2002); see
also TypeRight, 374 F.3d at 1156 (“A party may cross-
appeal if adversely affected by the appealed judgment in
some particular which it seeks to have modified.”). In
Bailey we explained that an unwarranted cross-appeal
“unnecessarily expands the amount of briefing,” and also
gives “the appellee an unfair opportunity to file the final
brief and have the final oral argument, contrary to estab-
lished rules.” Bailey, 292 F.3d at 1362.


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