NOTE: ThiS order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
\
BIOPOLYMER ENGINEERING, INC. (d0ing busi-
ness as Bi0thera),
Plaintiff-Appellant,
and
MAsSAcHUSETTS 1NST1TUTE 0F TEcHN0L0GY,
PzamzzfL
V.
IMMUNOCORP and BIOTEC PHARMACON ASA,
Defendants.
2010-1096
Appea1 from the United States District C0urt for the
DiSt1'ict of Minnesota in case no. 05-CV-0536, Judge Joan
M. Ericksen.
Befo;re RADER, Chief Ju,dge, BRYs0N and MooRE, Circuia:
Ju,dges.
R_A_DER, Chief Judge.
0 R D E R
Bi0po1y1ner Engineering, Inc. (Biothera) responds to
the court’S order directing it to respond whether this case

BIOPOLYMER V. IMMUNOCORP 2
should be dismissed for lack of a case or controversy.
Biothera requests that the court rule that the appeal is
not moot or, in the alternative, vacate the January 28,
2009 order of the United States District Court for the
District of Minnesota granting summary judgment of
noninfringement
1
Biothera brought suit alleging that lmmunocorp and
Biotec Pharmacon ASA (Biotec) infringed 14 of Biothera’s
patents. Both parties filed summary judgment motions
concerning one of the patents in suit, United States
Patent No. 5,702,719 (the ‘7 19 patent), and the district
court granted Biotec’s motion for summary judgment that
the '71`9 patent was not infringed. While the case was
pending in the district court, the parties entered into a
settlement agreement. Pursuant to the terms of the
settlement agreement, the district court entered judgment
of noninfringement, and Biothera appealed.
Biotec submitted to this court a letter indicating that,
pursuant to the settlement agreement, it had agreed not
to participate in this appeal The court then directed
Biothera to show cause why this case should not be dis-
missed as moot due to lack of a case or controversy
Biothera asserts that this appeal is not moot because
"[a] very real and current controversy exists as to whether
defendants’ products infringe the '719 patent." Biothera
states that this appeal "will directly decide the legal
rights between Biothera and the defendants. lf Biothera
fails to prevail in its appeal, the judgment of non-
infringement of all of Defendant’s accused products will
become f1nal. However, if Biothera prevails in its appea1,
the judgment of non-infringement will be reversed or
vacated.”
A settlement agreement does not necessarily result in
mootness of an appea1. In Hcwens Realty Corp. v. Cole-

3 BIOPOLYMER V. IMMUNOCORP
mcm, 455 U.S. 363 371 (1982), the United States Supreme
Court determined that a case was not moot although the
parties had reached a letter agreement, subject to the
approval of the district court, that established damages
contingent on the outcome of the Supreme Court case.
The court stated that "respondents continue to seek
damages . . . . Given respondents continued active pursuit
of monetary relief, this case remains ‘definite and con-
crete, touching the legal relations of parties having ad-_
verse legal interests."’ Id. With respect to a party.that
had sought only injunctive relief in the district court, the
court noted that the case was not moot because “the letter
agreement, under which HOlVlE agreed not to seek any
further injunctive relief and which involves settlement of
an uncertified class action, is still subject to the approval
of the District Court." Id. at 371, n.10. See also Nixon v.
FitzgeraZd, 457 U.S. 731, 744 (l982) (liquidated damages
agreement reached during pendency of case did not result
in mootness where parties still had "a considerable finan-
cial stake in the resolution of the question presented in
this Court").
However, if by reason of settlement or other circum-
stance a court can no longer grant effectual relief, a case
becomes moot and must be dismissed. See Mills u. Green,
159 U.S. 651, 653 (1895) ("when . . . an event occurs which
renders it impossible for this court, if it should decide the
case in favor of the plaintiff to grant him any effectual
relief Whatever, the court will not proceed to a formal
judgment, but will dismiss the appeal"); see also Nasatka
v. Delta Scientific Corp., 58 F.3d 1578, 1580-81 (Fed. Cir.
1995) (if event occurs that makes it impossible for court to
grant any effectual relief, "the appeal must be dismissed
as 1noot").
Much of Biothera’s response is marked as confiden-
tial. However, without revealing information marked by

BIOPOLYMER V. IMMUNOCORP 4
Biothera as c0nfidential, the court determines, based on
Biothera’s response and the court’s review of the settle-
ment agreement, that this court cannot grant any effec-
tual relief to Biothera. Biothera has not shown that any
claim for monetary or other relief is contingent on this
court’s determination. Under these circumstances, this
case does not present a “definite and concrete [case or
controversy], touching the legal relations of parties having
adverse legal interests." Aetnoz Life In,s. Co. v. Haw0rth,
300 U.S. 227, 240-41 (1937). In this case, because the
court cannot grant Biothera any effectual relief, there is
no case or controversy and the appeal must be dismissed.
In the alternative, Biothera requests that the court
vacate the district court judgment. fn U.S. Ban.corp
Mortgage Co. v. Bonner ll/fall P’ship, 513 U.S. 18, 29
(1994), the Supreme Court held that when a case becomes
moot due to settlement, vacatur is not justified in the
absence of exceptional circumstances. ln this case, Bio-
thera has not shown that exceptional circumstances
warrant vacatur. Thus, the request is denied.
Accordingly,
IT Is ORDERED THAT:
Biothera’s request that the court rule that the appeal
is not moot and alternative request that the court vacate
the district court judgment are denied The appeal is
dismissed as moot.
FoR THE CoURT
AUG  2 2010
/s/ J an Horbaly
Date J an Horbaly
Clerk
FILED
u.s. count or APPEALs FOR
ms FEnzRAL concur
aura 102 mm
.IAN HORBALY
CLEl?M

5
cc: Darren B. Schwiebert, Esq.
Susan A. Cahoon, Esq.
s17
1
BIOPOLYMER V. IMMUNOCORP

