
    KING PHARMACEUTICALS, INC. and King Pharmaceuticals Research and Development, Inc., Plaintiffs-Respondents, and Wyeth, Plaintiff, v. TEVA PHARMACEUTICALS USA, INC., Defendant-Petitioner.
    Misc. No. 821.
    United States Court of Appeals, Federal Circuit.
    May 1, 2006.
    Before BRYSON, GAJARSA, and PROST, Circuit Judges.
   PROST, Circuit Judge.

ORDER

Teva Pharmaceuticals USA, Inc. petitions for permission to appeal the order certified by the United States District Court for the District of New Jersey as one involving a controlling question of law for which there is a substantial ground for a difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation. 28 U.S.C. §§ 1292(b) and (c)(1). King Pharmaceuticals, Inc. et al. respond.

Teva moved to dismiss King Pharmaceuticals’ ANDA infringement suit in the district court on the ground that the patent had expired because it was subject to a terminal disclaimer, 35 U.S.C. § 253. Teva argued that the provision allowing the Patent and Trademark Office to extend the patent term due to delay at the Food and Drug Administration, 35 U.S.C. § 156, is in conflict with § 253 and is inoperable and of no effect. The district court disagreed concluding that a terminally disclaimed patent is eligible for extension under § 156.

The decision whether to grant a petition for permission to appeal is within this court’s discretion. See In re Convertible Rowing Exerciser Patent Litigation, 903 F.2d 822 (Fed.Cir.1990). We decline to exercise our discretion to grant the petition in this case. Teva argues that there is a substantial ground for a difference of opinion on the question presented here. However, it points to no judicial opinions that are in conflict. It presented a new argument, which the district court rejected in a lengthy and thorough opinion. It may, of course, argue on any appeal after final judgment that the district court’s ruling was wrong. However, it has not demonstrated that it is appropriate to review the district court’s decision at this interlocutory stage of the case.

Accordingly,

IT IS ORDERED THAT:

The petition for permission to appeal is denied.  