                NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is
                not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit


                                       04-1463



                   APOTEX INC. (formerly known as TorPharm, Inc.)
                              and APOTEX CORP.,

                                                     Plaintiffs-Appellants,

                                           v.

                   PFIZER INC. and WARNER-LAMBERT COMPANY
                    (now known as Warner-Lambert Company LLC),

                                                     Defendants-Appellees.

                           __________________________

                            DECIDED: April 11, 2005
                           __________________________


Before MAYER, Circuit Judge, PLAGER, Senior Circuit Judge, and GAJARSA, Circuit
Judge.

PER CURIAM.

       Apotex Inc. and Apotex Corp. (collectively “Apotex”) appeal the judgment of the

district court, which dismissed Apotex’s declaratory judgment action for lack of

jurisdiction. Torpharm, Inc. v. Pfizer, Inc., No. 03-CV-990, 2004 WL 1465756 (D. Del.

June 28, 2004).     Because Apotex’s appeal is moot, we vacate and remand with

instructions to dismiss.
      Less than one week before oral argument, Pfizer covenanted not to sue Apotex

for infringement of U.S. Patent No. 4,743,450. A covenant not to sue, such as that

provided by Pfizer, moots an action for declaratory judgment.              See Amana

Refrigeration, Inc. v. Quadlux, Inc., 172 F.3d 852, 855 (Fed. Cir. 1999) (“[A] covenant

not to sue . . . is sufficient to divest a trial court of jurisdiction over a declaratory

judgment action.”).   As a result, the judgment and opinion of the district court are

vacated and the case is remanded with instructions to dismiss for lack of jurisdiction.

See U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 23 (1994)

(“[V]acatur must be granted where mootness results from the unilateral action of the

party who prevailed in the lower court.”); Najjar v. Ashcroft, 273 F.3d 1330, 1340 (11th

Cir. 2001); Mayfield v. Dalton, 109 F.3d 1423, 1427 (9th Cir. 1997).

                                        COSTS

      Apotex shall have its costs.




04-1463                                     2
