NOTE: This order is nonprecedential

United States Court of Appeals
for the Federal Circuit

FRESENIUS USA, INC. AND
FRESENIUS MEDICAL CARE HOLDINGS, INC.,
Plaintiffs-Appellants,

V.

BAXTER INTERNATIONAL, INC. AND
BAXTER HEALTHCARE CORPORATION,
Defendants-Cross Appellants,

2012-1334, -1335

Appea1s from the United States District Court for the
Northern District of California in case no. O3-CV-1431,
Judge Phy11is J. Hamilton.

ON MOTION

Before O’MALLEY, Circuit Judge.
O R D E R

Fresenius USA, Inc. and Fresenius Medical Care
Holdings, Inc. (Fresenius) move to stay proceedings in
these appeals pending this c0urt’s final disposition in In
re Baxter International, Inc., No. 2011-1073. Baxter

FRESENIUS USA, INC. V. BAXTER INTERNATIONAL, INC. 2

International, Inc. and Baxter Healthcare Corporation
(Baxter) oppose the motion.

This motion for a stay of proceedings arises out of an
action filed by Fresenius in the United States District
Court for the Northern District of California seeking a
declaratory judgment from the court that it did not in-
fringe five of Baxter’s patents, including U.S. Patent No.
5,247,434 (the 434 patent). The district court granted
Baxter’s motion for judgment as a matter of law that
Fresenius as to the 434 patent’s validity. On .appeal, this
court affirmed the district court’s JMOL ruling, but
remanded the case for the district court to consider the
issue of an ongoing royalty. After the district court
awarded Baxter an ongoing royalty, both parties appealed
from the district court’s judgment, which is now before
this court.

VVhile the declaratory judgment action was proceeding
before the district court, Fresenius filed a petition for
inter parties reexamination of several claims of the 434
patent, which was granted. The Board of Patent Appeals
and Interferences found all of the asserted claims of the
434 patent invalid. On appeal, this court in In re Baxter
affirmed the Board’s determinations. On July 2; 2012,
Baxter filed a combined petition for panel rehearing and
rehearing en banc, which remains pending. Fresenius
seeks to stay proceedings in these appeals until this court
decided Baxter’s rehearing en banc, contending that that
issuance of the court’s mandate in In re Baxter will moot
these appeals.

The power of the Court to stay proceedings is inciden-
tal to its inherent power to control the disposition of the
case on its docket. See Landis v. North Am. Co., 299 U.S.
248, 254 (1936). Here, we cannot say Fresenius has
shown that staying proceedings is warranted, particularly
in light of the fact that Fresenius raises these arguments
in its brief.

FRESENIUS USA, INC. V. BAXTER INTERNATIONAL, INC.

Accordingly,
IT IS ORDERED THATZ

The motion to stay is denied.

FOR THE COURT

 0 5 2012 /s/ Jan Horbaly
Dat’ei J an Horbaly
Clerk

CCI

s26

Michael Eugene Florey, Esq.
Michael J. Abernathy, Esq.

|LED
. .coun oF APPEALS Fon
"STHE FEnEnALc\Rcu\T

SEP 05 2012

JAN HORBALY
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