
    ARTHROCARE CORPORATION, Plaintiff/Counterclaim Defendant-Appellee, and Ethicon, Inc., Counterclaim Defendant-Appellee, v. SMITH & NEPHEW, INC., Defendant/Counterclaimant-Appellant. Arthrocare Corporation, Plaintiff/Counterclaim Defendant-Appellant, and Ethicon, Inc., Counterclaim Defendant-Appellee, v. Smith & Nephew, Inc., Defendant/Counterclaimant-Appellee.
    Nos. 04-1323, 04-1352.
    United States Court of Appeals, Federal Circuit.
    June 18, 2004.
    Before MAYER, Chief Judge, RADER and DYK, Circuit Judges.
   ORDER

RADER, Circuit Judge.

The court considers whether ArthroCare’s cross-appeal, 04-1352, should be dismissed.

ArthroCare sued Smith & Nephew for infringement of three patents relating to electrosurgical devices and methods in the United States District Court for the District of Delaware, Arthrocare Corporation v. Smith & Nephew, Inc., No. 01-504-SLR. The jury returned a verdict of infringement and rejected Smith & Nephew’s assertions of invalidity. Subsequently, the district court granted ArthroCare’s motion for entry of a permanent injunction. Smith & Nephew appealed. ArthroCare filed a “conditional cross appeal” from the district court’s ruling “precluding ArthroCare from offering evidence on infringement under the doctrine of equivalents, the Court’s refusal to instruct the jury on infringement under the doctrine of equivalents, and any and all orders rulings, and judgments underlying these decisions.”

An “appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it.” United States v. American Ry. Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 68 L.Ed. 1087 (1924); see also Datascope Corp. v. SMEC, Inc., 879 F.2d 820, 822 n. 1 (Fed.Cir.1989) (“Appellees always have the right to assert alternative grounds for affirming the judgment that are supported by the record.”). ArthroCare prevailed in district court. ArthroCare may, as an appellee, challenge any unfavorable aspects of the district court’s rulings. However, It is not proper for ArthroCare to proceed as a cross-appellant.

Accordingly,

IT IS ORDERED THAT:

(1) ArthroCare’s cross-appeal, 04-1352, is dismissed.

(2) Each side shall bear its own costs for 04-1352.

(3) The revised official caption in 04-1323 is reflected above.  