CORRECTED ORDER: SEPTEMBER 5, 2012
NOTE: This order is nonprecedentia1.

United States Court of Appeals
for the Federal Circuit

FRESENIUS USA, INC. AND
FRESENIUS MEDICAL CARE HOLDINGS, INC.,
Plaintiffs-Appellants,

V.

BAXTER INTERNATIONAL, INC. AND
BAXTER HEALTHCARE CORPORATION,
Defendan ts-Cross Appellants,

2012-1334, -1335

Appea1s from the United States District Court for the
Northern District of Ca1ifornia in case no. 03-CV-1431,
Judge Phyllis J. Hami1ton.

ON MOTION

Before O’MALLEY, Circuit Judge.
O R D E R

Fresenius USA, Inc. and Fresenius Medica1 Care
Holdings, Inc. (Fresenius) move to stay proceedings in
these appeals pending this court’s final disposition in In

FRESENIUS USA, INC. V. BAXTER INTERNATIONAL, INC. 2

re Baxter International, Inc., No. 2011-1073. Baxter
International, Inc. and Baxter Healthcare Corporation
(Baxter) oppose the motion.

This motion for a stay of proceedings arises out of an
action filed by Fresenius in the United States District
Court for the Northern District of California seeking a
declaratory judgment from the court that it did not in-
fringe five of Baxter’s patents, including U.S. Patent No.
5,247,434 (the 434 patent). The district court granted
Baxter’s motion for judgment as a matter of law that
Fresenius did not prove the claims of the 434 patent
invalid. On appeal, this court affirmed the district court’s
JMOL ruling, but remanded the case for the district court
to consider the issue of an ongoing royalty. After the
district court awarded Baxter an ongoing royalty, both
parties appealed from the district court’s judgment, which
is now before this court.

While the declaratory judgment action was proceeding
before the district court, Fresenius filed a petition for
inter parties reexamination of several claims of the 434
patent, which was granted. The Board of Patent Appeals
and Interferences found all of the asserted claims of the
434 patent invalid. On appeal, this court in In re Baxter
affirmed the Board’s determinations. On July 2, 2012,
Baxter filed a combined petition for panel rehearing and
rehearing en banc, which remains pending. Fresenius
seeks to stay proceedings in these appeals until this court
decided Baxter’s rehearing en banc, contending that that
issuance of the court’s mandate in In re Baxter will moot
these appeals.

The power of the Court to stay proceedings is inciden-
tal to its inherent power to control the disposition of the
case on its docket. See Landis v. North Am. Co., 299 U.S.
248, 254 (1936). Here, we cannot say Fresenius has
shown that staying proceedings is warranted, particularly

3 FRESENIUS USA, INC. V. BAXTER INTERNATIONAL, INC.

in light of the fact that Fresenius raises these arguments
in its brief.

Accordingly,
IT ls ORDERED THAT:

The motion to stay is denied.

FOR THE COURT

SEP 9 5 2912 /S/ Jan Horbaly
Date J an Horbaly
Clerk

cc: Michael Eugene Florey, Esq.

Michael J. Abernathy, Esq.
s26

u's.THE FEDERAL C!RCUI`|FOR
SEP 05 2012

JAN HORBAlV
CLRK

