                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                   2007-1258, -1259


                     ORTHO-MCNEIL PHARMACEUTICAL, INC.,

                                                       Plaintiff-Appellee,

                                           v.


                         COBALT PHARMACEUTICALS INC.,

                                                       Defendant-Appellant.



         Harry J. Roper, Jenner & Block LLP, of Chicago, Illinois, argued for plaintiff-
appellee. With him on the brief were Aaron A. Barlow and Eric L. Lohrenz, of Chicago,
Illinois, and Marc A. Goldman, of Washington, DC.

       Deanne M. Mazzochi, Rakoczy Molino Mazzochi Siwik LLP, of Chicago, Illinois,
argued for defendant-appellant. With her on the brief were William A. Rakoczy and
Natalie G. Mitchell.

Appealed from: United States District Court for the District of New Jersey

Judge Stanley R. Chesler
                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                    2007-1258, -1259

                      ORTHO-MCNEIL PHARMACEUTICAL, INC.,

                                                       Plaintiff-Appellee,

                                            v.

                          COBALT PHARMACEUTICALS INC.,

                                                       Defendant-Appellant.

Appeal from the United States District Court for the District of New Jersey in case no.
05-CV-4961 and 05-CV-5920, Judge Stanley R. Chesler.
                          ___________________________

                            DECIDED: March 31, 2008
                            ___________________________

Before MICHEL, Chief Judge, RADER and LINN, Circuit Judges.

RADER, Circuit Judge.


        Instead of presenting its arguments to the district court, Cobalt Pharmaceuticals

Inc. ("Cobalt") stipulated that it would be bound by the district court's final judgment

order in the related ongoing litigation Ortho McNeil Pharmaceutical, Inc. v. Mylan

Laboratories Inc., Case No. 04-cv-1689 (SRC) (D.N.J.) ("Ortho v. Mylan"). Accordingly,

when the district court entered its judgment permanently enjoining Mylan from infringing

Ortho McNeil's U.S. Patent No. 4,513,006 ('006) covering topiramate, it also entered

final judgment against Cobalt. Cobalt retained its rights to appeal to this court, but

stipulated that such an appeal would be based on the record of the Ortho v. Mylan

litigation.
      For the reasons set forth in the simultaneously issued opinion Ortho McNeil

Pharmaceutical, Inc. v. Mylan Laboratories, No. 2007-1223, this court affirms the district

court's judgment against Cobalt. Because Cobalt's argument that claim 1 is rendered

indefinite by the inclusion of the phrase "may be" in the second clause that describes

R2 and R3 and/or R4 and R5 when they are together was not presented to the district

court, and because Cobalt stipulated that its appeal be based on the record in Ortho v.

Mylan, this court declines to consider that argument now.



                                       AFFIRMED




2007-1258, -1259                            2
