_,1 NOTE: This order is nonprecedential United States Court of AppeaIs for the FederaI Circuit ELI LILLY AND COMPANY, Plaintiff-Appellant, ' V. SICOR PHARMACEUTICALS, INC. (N0w KNOWN As TEVA PAREN'rERAL MED1c1NEs, INc.) AND TEVA PHARMACEUTICALS USA, INC., Defendcmts-Cr0ss Appellants. 2010-1342, -1343 Appeals from the United States District C0urt for the S0uthern District of Indiana in case n0. 06-CV-0238, Judge Sarah Evans Barker. ON MOTION Before GAJARsA, MAYER and PROS'r, Circu,it Ju,dges. GAJARSA, Circu,it Judge. ORDER 3 ELI LILLY V. SICOR PHARMA 2 Eli Lilly and Company (Eli Lilly) moves without oppo- sition to lift the stay of proceedings and to dismiss appeal no. 2010-1343 as moot Eli Lilly further moves to allow its appeal no. 2010-1342 to be briefed. Because we agree with Sicor Pharmaceuticals, Inc. et al. (Sicor) that Eli Lilly’s appeal is controlled by our decision in Sun Pharm. In,du,s., Ltd. u. Eli Lilly and Co., 611 F.3d 1381 (Fed. Cir. 2010), we summarily affirm. The 2010-1342 appeal arises out of a Hatoh-Waxman Act case in which Eli Lilly alleged patent infringement of claim 7 of U.S. Patent No. 5,464,826. Sicor argued that claim 7 was invalid for obviousness-type double patent- ing. Sicor further argued that Eli Lilly was collaterally estopped from arguing that obviousness-type double patenting did not apply to claim 7 because Eli Lilly had lost on that very argument in Sun Pharm,. Indus., Ltd. v. Eli Lilly & Co., 647 F.Supp.2d 820 (E.D. Migh. 2009), which was then on appeal before this court. Eli Lilly appealed the collateral estoppel determination This court stayed these appeals pending the outcome of the Sun Pharm. appeal. In July 2010, this court affirmed the trial court’s determination in Sun Pharm. that claim 7 was invalid for obviousness-type double patenting. In November 2010, a combined petition for panel rehearing and rehearing en banc was denied by the court. See Su,n Pharm. Indus., Ltd. v. Eli Lilly and Co., 625 F.3d 719 (Fed. Cir. 2010). Under Blon,der-T0ngue v. Uniu. Found., 402 U.S. 313 (1971), once a court determines that a patent is invalid in a proceeding where the patent owner had a full and fair opportunity to adjudicate the issue, the patent owner is collaterally estopped from relitigating the issue in a future case. Eli Lilly does not dispute that the trial court correctly applied the collateral estoppel doctrine in this case. lnstead, Eli Lilly’s sole objection to summarily f 3 ELI LILLY V. SICOR PHARMA affirming the district court’s judgment is that it "contin- ues to believe that the Sun decision was wrongly decided for all the reasons previously raised by Lilly and noted by the dissenting judge [in the denial of en banc order.]” Because the trial court’s decision is “so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists,” Joshua v. Unitecl States, 17 F.3d 378, 380 (Fed. Cir. l994), we agree with Sicor that summary affirmance is clearly appropriate here. Accordingly, ' IT ls ORDERED THAT: (1) The motion to lift the stay is granted (2) The motion to dismiss appeal no. 2010-1343 as moot is granted. la (3) The motion to summarily affirm appeal no. 2010- 1342 is granted. (4) Each side shall bear its own costs FOR THE COURT HAY 2 5 2511 /s/ Jan Horbaly Date J an Horbaly Clerk cc: Charles E. Lipsey, Esq. E1izabe1;h J. H@11and, ESq. mca F!,} 9 519 ».r:sER,lr.aa.:°“ l‘|AY 26 2011 1ANHDRBA|.Y 6LERK