Bayer AG v. Housey Pharmaceuticals, Inc.

140 F. App'x 948

Opinion

ON MOTION

RADER, Circuit Judge.

ORDER

The parties respond to this court’s order concerning how this case should proceed in view of this court’s recent decision in a related case, Bayer AG v. Housey Pharmaceuticals, Inc., 128 Fed.Appx. 767 (Fed. Cir.2005). Bayer AG et al. moves to stay this appeal, pending further proceedings in the district court. Housey Pharmaceuticals, Inc. opposes. Bayer replies.

In our recent decision, we vacated the district court’s inequitable conduct determination and remanded “to permit the district court to provide any further reason it may have to find Housey incredible.” In the present appeal, Housey seeks review of the district court’s previous award of attorney fees, based on the now-vacated inequitable conduct determination.

We deem the better course, as Housey suggests, is to vacate the attorney fee award and remand to the district court for further proceedings, if necessary. Bayer argues that this appeal should be stayed until the district court decides inequitable conduct issues on remand. However, judicial economy would not be served by a stay. The district court will be issuing new rulings on remand and any appeal from those rulings will have to be briefed anew.

Accordingly,

IT IS ORDERED THAT:

(1) The district court’s attorney fee award is vacated and this case is remanded for further proceedings, as appropriate.

(2) Each side shall bear its own costs.