Case: 14-1582        Document: 33           Page: 1       Filed: 10/06/2014




             NOTE: This order is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                      ______________________

         WARNER CHILCOTT COMPANY, LLC,
                Plaintiff-Appellant,

                                      v.

   LUPIN LTD. AND LUPIN PHARMACEUTICALS,
                      INC.,
               Defendants-Appellees.
              ______________________

                            2014-1582
                      ______________________

     Appeal from the United States District Court for the
 District of New Jersey in No. 3:11-cv-07228-JAP-DEA,
 Judge Joel A. Pisano.

     ---------------------------------------------------------------------

         WARNER CHILCOTT COMPANY, LLC,
                 Plaintiff-Appellee,

                                      v.

   LUPIN LTD. AND LUPIN PHARMACEUTICALS,
                      INC.,
              Defendants-Appellants.
              ______________________

                                2014-1632
Case: 14-1582    Document: 33     Page: 2     Filed: 10/06/2014



 2                  WARNER CHILCOTT COMPANY      v. LUPIN LTD.



                  ______________________

     Appeal from the United States District Court for the
 District of New Jersey in No. 3:11-cv-07228-JAP-DEA,
 Judge Joel A. Pisano.
                  ______________________

                      ON MOTION
                  ______________________
     Before PROST, Chief Judge, DYK and MOORE, Circuit
                          Judges.
 PROST, Chief Judge.
                        ORDER
     Warner Chilcott Company, LLC moves to dismiss the
 cross-appeal of Lupin Ltd. and Lupin Pharmaceuticals,
 Inc. (collectively, “Lupin”). Lupin opposes.
                             I.
     This case involves a dispute over whether Lupin’s Ab-
 breviated New Drug Application to market its generic
 version of Generess® infringes U.S. Patent No. 6,667,050
 (the “’050 patent”) owned by Warner Chilcott and listed in
 the Orange Book.
     Following a bench trial, the district court entered its
 judgment, which, provided in relevant part:
       IT IS on this 28th day of April 2014
       ORDERED as follows:
       1. Judgment is entered in favor of Plaintiff
       on Plaintiff’s claims of infringement and De-
       fendants’ counterclaim of noninfringement.
       2. The Court finding that the ’050 patent is
       invalid as obvious, and judgment is entered
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  WARNER CHILCOTT COMPANY    v. LUPIN LTD.                3



       in favor of Defendants on Defendants’ coun-
       terclaim of invalidity.
     After Warner Chilcott appealed from the judgment,
 Lupin filed a cross-appeal, challenging the district court’s
 infringement and definiteness determinations. Warner
 Chilcott moves to dismiss the cross-appeal as improper.
                             II.
      When a district court has entered a judgment of inva-
 lidity as to all asserted claims, a cross-appeal is unneces-
 sary and improper to assert additional grounds of
 invalidity or non-infringement. See, e.g., Aventis Pharma
 S.A. v. Hospira, Inc., 637 F.3d 1341, 1343-44 (Fed. Cir.
 2011); TypeRight Keyboard Corp. v. Microsoft Corp., 374
 F.3d 1151, 1157 (Fed. Cir. 2004). Lupin nonetheless
 contends that its cross-appeal was proper because the
 district court “entered two distinct judgments—one as to
 infringement and one as to invalidity.”
     That the district court entered a judgment with sepa-
 rate line items addressing infringement and invalidity
 does not suggest Lupin’s cross-appeal was proper. The
 form of the judgment is not what matters; what matters is
 whether the party was adversely affected by the judg-
 ment. See TypeRight, 374 F.3d at 1156-57 (“A party may
 ‘cross-appeal if adversely affected by the appealed judg-
 ment in some particular which it seeks to have modi-
 fied.’”) (quoting Beloit Corp. v. Valmet Oy, 742 F.2d 1421,
 1424 (Fed. Cir. 1984)).
     Radio Steel & Mfg. Co. v. MTD Products, Inc., 731
 F.2d 840 (Fed. Cir. 1984), upon which Lupin most heavily
 relies, is easily distinguishable. There, the district court
 issued a judgment that the patent was “valid but not
 infringed by the defendant’s products.” Id. at 843. Since
 the defendant would need to modify the judgment to
 market other products without fear of infringing the
 patent, we concluded that a cross-appeal would be neces-
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 4                     WARNER CHILCOTT COMPANY   v. LUPIN LTD.



 sary. Id. at 844. Here, by contrast, Lupin is not adverse-
 ly affected because it cannot be liable for infringement of
 an invalid patent. See, e.g., Richdel, Inc. v. Sunspool
 Corp., 714 F.2d 1573, 1580 (Fed. Cir. 1983). Thus, unlike
 Radio Steel & Mfg. Co., this case does not involve circum-
 stances where the defendant is seeking to expand its
 rights under the judgment, and therefore is outside the
 circumstances where filing a cross-appeal is proper.
     However, the “appellee may, without taking a cross-
 appeal, urge in support of a decree any matter appearing
 in the record, although his argument may involve an
 attack upon the reasoning of the lower [tribunal] or an
 insistence upon matter overlooked or ignored by it.”
 United States v. Am. Ry. Express Co., 265 U.S. 425, 435
 (1924). Lupin may thus make its arguments regarding
 non-infringement and indefiniteness in its response brief
 as an appellee. See, e.g., Datascope Corp. v. SMEC, Inc.,
 879 F.2d 820, 822 n.1 (Fed. Cir. 1989) (an appellee may
 assert alternative grounds for affirmance supported by
 the record).
     Accordingly,
     IT IS ORDERED THAT:
     (1) The motion is granted. 2014-1632 is dismissed.
     (2) The revised official caption in 2014-1582 is reflect-
 ed above.
     (3) Each side shall bear its own costs in 2014-1632.
     (4) Lupin’s response brief is due no later than Novem-
 ber 6, 2014.
                                     FOR THE COURT

                                      /s/ Daniel E. O’Toole
                                      Daniel E. O’Toole
                                      Clerk of Court
Case: 14-1582   Document: 33     Page: 5    Filed: 10/06/2014



  WARNER CHILCOTT COMPANY   v. LUPIN LTD.                5




 ISSUED AS A MANDATE (As To 14-1632 Only):
 October 6, 2014



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