                         NOTE: This order is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                             Miscellaneous Docket No. 893

                                      SHIRE LLC,

                                                 Plaintiff-Respondent,

                                            v.

                                    SANDOZ, INC.,

                                                 Defendant-Petitioner.

         On Petition for Permission to Appeal pursuant to 28 U.S.C. § 1292(b)
  from the United States District Court for the District of Colorado in case no. 07-CV-
                            00197, Judge Philip A. Brimmer.

                     ON PETITION FOR PERMISSION TO APPEAL

Before GAJARSA, LINN, and PROST, Circuit Judges.

PROST, Circuit Judge.

                                       ORDER

      Sandoz, Inc. petitions for permission to appeal an order certified by the United

States District Court for the District of Colorado as one involving a controlling issue of

law as to which there is substantial ground for difference of opinion and for which an

immediate appeal may materially advance the ultimate termination of the litigation.

Shire LLC opposes.

      Sandoz petitions for this court to hear the issue of whether a patentee who

settles an earlier infringement case after a Markman ruling has issued is precluded

under the doctrine of collateral estoppel from relitigating claim-construction issues

determined in the prior case.      In its summary judgment order, the district court
acknowledged two previous holdings from different district courts addressing the

patents-in-suit, taking opposite positions regarding issues affecting the claim

construction in this case. The court here refused to give preclusive effect to the first

district court’s claim construction but granted Sandoz’s motion to certify on the ground

that the issue could be dispositive as to the infringement of at least one of the patents in

this case.

       Ultimately, this court must exercise its own discretion in deciding whether it will

grant permission to appeal interlocutory orders certified by a trial court.      See In re

Convertible Rowing Exerciser Patent Litigation, 903 F.2d 822 (Fed. Cir. 1990); 28

U.S.C. § 1292(c)(1). We determine that granting the petition in these circumstances is

warranted.

       Accordingly,

       IT IS ORDERED THAT:

       The petition for permission to appeal is granted.

                                                 FOR THE COURT



      Feb. 6, 2009                                /s/ Jan Horbaly____________
         Date                                    Jan Horbaly
                                                 Clerk

cc:    Keith D. Parr, Esq.
       Edgar H. Haug, Esq.
s19




Misc. 893                                -2-
