Case 1:16-cv-00030-GMS Document 13 Filed 05/24/16 Page 1 of 4 PageID #: 152
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`NOTE: This order is nonprecedential.
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`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`CUBIST PHARMACEUTICALS LLC,
`Plaintiff-Appellant
`
`v.
`
`MYLAN LABORATORIES LIMITED, AGILA
`SPECIALTIES INC., FRESENIUS KABI USA, LLC,
`SAGENT PHARMACEUTICALS, INC., CRANE
`PHARMACEUTICALS LLC, DR. REDDY'S
`LABORATORIES, LTD., DR. REDDY'S
`LABORATORIES, INC.
`Defendants-Appellees
`______________________
`
`2016-1652, -1653, -1796, -1853, -2057
`______________________
`
`Appeals from the United States District Court for the
`District of Delaware in Nos. 1:12-cv-00367-GMS, 1:13-cv-
`01679-GMS, 1:14-cv-00914-GMS, 1:15-cv-01164-GMS,
`1:15-cv-01214-GMS, 1:16-cv-00030-GMS, and 1:16-cv-
`00072-GMS, Judge Gregory M. Sleet.
`______________________
`
`ON MOTION
`______________________
`
`Before LOURIE, O’MALLEY, and CHEN, Circuit Judges.
`LOURIE, Circuit Judge.
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`

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`Case 1:16-cv-00030-GMS Document 13 Filed 05/24/16 Page 2 of 4 PageID #: 153
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` CUBIST PHARMACEUTICALS LLC v. MYLAN LABORATORIES
` LIMITED
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`O R D E R
`Upon consideration of the parties’ competing motions
`to stay or resolve these appeals, we consider whether
`summary affirmance is appropriate.
`These Hatch-Waxman Act appeals concern abbreviat-
`ed new drug applications (“ANDAs”) filed by generic drug
`manufacturers Fresenius Kabi USA, LLC (“Fresenius”),
`Agila Specialties Inc. and Mylan Laboratories Limited
`(collectively, “Mylan”), Sagent Pharmaceuticals, Inc.,
`Crane Pharmaceuticals LLC, and Dr. Reddy’s Laborato-
`ries, Ltd. and Dr. Reddy’s Laboratories, Inc. Each ANDA
`challenges certain patents owned by Cubist Pharmaceuti-
`cals LLC (“Cubist”) purporting to cover Cubist’s antibiotic
`product, Cubicin®.
`The district court entered consent judgments in favor
`of the appellees in these cases following this court’s deci-
`sion in Cubist Pharmaceuticals, Inc. v. Hospira, Inc., Nos.
`2015-1197, -1204, -1259 (“the Hospira appeal”). In that
`case, this court affirmed the district court’s judgment that
`the asserted claims of U.S. Patent Nos. 6,468,967,
`6,852,689, 8,058,238, and 8,129,342 are invalid. In March
`2016, Cubist filed a petition for a writ of certiorari in the
`the Hospira appeal, which remains pending.
` While the Hospira appeal was pending before this
`court, the appellees and Cubist entered into agreements
`in efforts to narrow the issues and to stay the cases pend-
`ing the Hospira appeal. After this court issued its deci-
`sion in Hospira, the district court entered consent
`judgments in these underlying cases, in which the parties
`stipulated that the asserted patents were invalid in light
`of this court’s decision in Hospira. Cubist then appealed.
`Fresenius and Mylan each move to summarily affirm
`because, among other things, collateral estoppel applies
`based on the judgment in the Hospira appeal. Cubist
`opposes and moves to stay this appeal pending disposition
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`

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`CUBIST PHARMACEUTICALS LLC v. MYLAN LABORATORIES
`LIMITED
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`of its petition for a writ of certiorari, arguing that, until
`its appeal rights before the Supreme Court have been
`exhausted, collateral estoppel does not apply.
`It is well settled that “where a patent has been de-
`clared invalid in a proceeding in which the ‘patentee has
`had a full and fair chance to litigate the validity of his
`patent’, the patentee is collaterally estopped from reliti-
`gating the validity of the patent.” Miss. Chem. Corp. v.
`Swift Agric. Chems. Corp., 717 F.2d 1374, 1376 (Fed. Cir.
`1983) (quoting Blonder-Tongue Labs., Inc. v. Univ. of Ill.
`Found., 402 U.S. 313, 333 (1971)).
`Cubist contends that it has not yet had a full oppor-
`tunity to litigate the validity of its patents because its
`petition for a writ of certiorari is still pending before the
`Supreme Court. However, courts have long held that the
`pendency of an appeal before the Supreme Court does not
`preclude the application of res judicata. See Straus v. Am.
`Publishers’ Ass’n, 201 F. 306, 310 (2d Cir. 1912) (“The
`point is also made that the judgment was not res adjudi-
`cata because of the appeal pending to the United States
`Supreme Court. This fact does not suspend the operation
`of the judgment as an estoppel, Parkhurst v. Berdell, 110
`N.Y. 386, 18 N.E. 123, 6 Am.St.Rep. 384; Deposit Bank v.
`Frankfort, 191 U.S. 499, 510, 24 Sup.Ct. 154, 48 L.Ed.
`276; Freeman on Judgments, Sec. 328.”).
`The cases relied upon by Cubist are not to the contra-
`ry. Linnen v. Armainis, 991 F.2d 1102, 1107–09 (3d Cir.
`1993), and Bailey v. Ness, 733 F.2d 279, 282 (3d Cir.
`1984), addressed a very different issue of whether a
`federal civil rights case should be stayed pending comple-
`tion of a state criminal matter. Novo Nordisk Inc. v.
`Paddock Laboratories, Inc., 468 F. App’x 961, 961–62
`(Fed. Cir. 2011), and Kittel v. First Union Mortgage Corp.,
`303 F.3d 1193, 1194–95 (10th Cir. 2002), merely involved
`the exercise of discretion to stay proceedings. Finally,
`Sovereign Software LLC v. Victoria’s Direct Brand Man-
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` CUBIST PHARMACEUTICALS LLC v. MYLAN LABORATORIES
` LIMITED
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`agement, LLC, 778 F.3d 1311, 1316–17 (Fed. Cir. 2015),
`does not, as Cubist suggests, say that collateral estoppel
`only applies after all review by the Supreme Court.
`Summary affirmance is appropriate when “the posi-
`tion of one party is so clearly correct as a matter of law
`that no substantial question regarding the outcome of the
`appeal exists.” Joshua v. United States, 17 F.3d 378, 380
`(Fed. Cir. 1994). Because collateral estoppel clearly
`applies in light of this court’s decision in Hospira that the
`asserted patent claims are invalid, we conclude that
`summary affirmance is appropriate in this case.
`Accordingly,
`IT IS ORDERED THAT:
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`(1) The judgments in the above-captioned appeals are
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`summarily affirmed.
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`(2) All other pending motions are denied as moot.
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`(3) Each side shall bear its own costs.
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` FOR THE COURT
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` /s/ Peter R. Marksteiner
`Peter R. Marksteiner
`Clerk of Court
`
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`s31
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