Case: 20-1673 Document: 72 Page: 1 Filed: 10/25/2022
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MYLAN PHARMACEUTICALS INC.,
Appellant
v.
BIOGEN MA, INC.,
Appellee
______________________
2020-1673
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2018-
01403.
______________________
ON PETITION FOR PANEL REHEARING
______________________
Before REYNA, and HUGHES, Circuit Judges *.
PER CURIAM.
* Circuit Judge O’Malley, who served on the merits
panel in this case, retired on March 11, 2022. Circuit Judge
Reyna and Circuit Judge Hughes have acted as a quorum
with respect to this order. See Fed. Cir. R. 47.11.
Case: 20-1673 Document: 72 Page: 2 Filed: 10/25/2022
2 MYLAN PHARMACEUTICALS INC. v. BIOGEN MA INC.
ORDER
Mylan Pharmaceuticals Inc. and Biogen MA Inc. filed
a joint status report on October 17, 2022, detailing the Su-
preme Court’s denial of Biogen’s petition for certiorari in
the companion case, Biogen Int’l GmbH v. Mylan Pharms.
Inc., 18 F.4th 1333, 1346 (Fed. Cir. 2021), cert. denied, 2022
WL 4652058, at *1 (Oct. 3, 2022). In the companion case,
Appeal No. 1933, this court found the ’514 patent invalid
for lack of written description under 35 U.S.C. § 112. Ac-
cordingly, in this appeal, Appeal No. 20-1673, both parties
agree that there is an absence of a live controversy and ask
that this court vacate the Board’s final written decision and
remand with instructions to dismiss the IPR. In light of
our precedent, we agree with the parties that this appeal is
moot and the underlying final written decision should be
vacated. See Apple Inc. v. Voip-Pal.com, Inc., 976 F.3d 1316,
1321 (Fed. Cir. 2020) (vacating Board decisions on patenta-
bility and remanding with instructions to dismiss IPRs as to
those claims because a district court’s invalidation of those
claims rendered the appeal moot (citing United States v. Mun-
singwear, Inc. 340 U.S. 36, 39–41 (1950))).
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The Board’s final written decision issued on Febru-
ary 2, 2020 is vacated.
(2) The Board is instructed to dismiss the inter partes
petition.
FOR THE COURT
October 25, 2022 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court