NOTE: This order is nonprecedentia1.
United States Court of AppeaIs
for the FederaI Circuit
TYCO HEALTHCARE GROUP LP
AND MALLINCKRODT INC.,
Plaintiffs-Appellants,
V.
MUTUAL PHARMACEUTICAL COMPANY, INC.
AND UNITED RESEARCH LABORATORIES, INC.,
Defendants-Appellees.
2010-1513
Appeal from the United States District Court for the
District of New Jersey in case no. 07-CV-1299, Judge
Stan1ey R. Ches1er.
ON MOTION
Before LINN, Circuit Judge.
0 R D E R
Mutual Phar1naceu1;ica1 Cornpany, Inc. and United
Research Laboratories, Inc. (Mutual) move to dismiss Tyco
Hea1thcare Group LP and Ma]linckrodt Inc.’s (Tyc0)
appeal, arguing that the United States District Court for
the District of NeW Jersey improperly directed entry of

TYCO HEALTHCARE V. MUTUAL PHARMA 2
final judgment pursuant to Rule 54(b) of the Federal RuleS
of Civil Procedure. Tyco opposes. Mutual replies.
This Hatch-Waxman suit was brought by 'l`yco to
prevent l\/lutual from bringing to market a generic version
of Tyco’s Restoril® temazepam composition product, which
is covered by four patents, all but one of which have now
expired Mutual’s answer, included inter alia, both
affirmative defenses and counterclaims, including an
affirmative defense that the only patent-at-suit is invalid
based on 35 U.S.C. § 103 grounds, an affirmative defense
and counterclaim that the patent is unenforceable due to
inequitable conduct, a counterclaim of improper
inventorship and derivation, and an antitrust
counterclaim.
On cross-motions for summary judgment, the District
Court granted Mutual’s motion for summary judgment of
invalidity on § 103 grounds and mooted the remaining
motions for summary judgment, leaving .Tyco’s
counterclaims for inequitable conduct and antitrust
violations pending. The court also granted Tyco’S motion
for entry of Enal judgment of invalidity pursuant to Rule
54(b). Mutual now moves to dismiss the appeal
Rule 54(b) permits the district court to "direct entry of
a final judgment as to one or more but fewer than all of
the claims or parties only upon an express determination
that there is no just reason for delay and upon an express
direction for the entry of judgment.” Fed.R.Civ.P. 54(b).
As the statute makes clear, our inquiry is two-fold: First,
was the certified claim final, which we review de novo;
and second, was the court’s determination that there is
“no just reason for delay” correct, which we review more
deferentially under an abuse of discretion standard. W.L.
Gore & Assoc. v. In.t’l Med. Prosthetics Research Assocs.,
Inc., 975 F.2d 858, 862 (Fed. Cir. 1992).

3 TYCO HEALTHCARE V. MUTUAL PHARMA
Here, it is clear that while Mutual’s counterclaims
remain pending, the District Court’s grant of summary
judgment of invalidity ended the litigation on the merits
of Tyco’s claim for patent infringement. Catlin v. Un.ited
States, 324 U.S. 229, 233 (1945). Mutual’s only viable
contention therefore can only be that the District Court
abused its discretion in finding that there was “no just
reason for delay.” We cannot say that Mutual has met its
burden in demonstrating such abuse We therefore deny
the motion to dismiss
Accordingly,
lT lS ORDERED THATf
The motion to dismiss is denied
FoR THE CoURT
JAN 27 2011
/s/ J an Horbaly
Date J an Horbaly
Clerk
cc: Henry J. Renk, Esq.
Jeremy C. Lowe, Esq. FILEu') `
U.S. COUBT 0F iPPEALS FOR
S19 THE FEDERAL ClRCUIT
wl 2 7 2011
1ANw.0a=zsAiv
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