
    BIO-TECHNOLOGY GENERAL CORP., Plaintiff-Appellee, v. NOVO NORDISK A/S and Novo Nordisk Pharmaceuticals, Inc., Defendants-Appellants. Novo Nordisk A/S and Novo Nordisk Pharmaceuticals, Inc., Plaintiffs-Appellants, v. Bio-Technology General Corp. and Teva Pharmaceuticals USA, Inc., Defendants-Appellees.
    No. 04-1580, 04-1581.
    United States Court of Appeals, Federal Circuit.
    Dec. 15, 2004.
   ORDER

LINN, Circuit Judge.

Bio-Technology General Corp. (BTG) moves to dismiss 04-1580 for lack of jurisdiction. Novo Nordisk A/S et al. (Novo) responds. Novo moves to stay the briefing schedule in 04-1581, pending disposition of remand proceedings at the Patent and Trademark Office and the filing of any appeal related thereto. BTG and Teva Pharmaceuticals USA, Inc. (Teva) oppose. Novo replies.

BTG filed an action, pursuant to 35 U.S.C. § 146, challenging a decision of the Board of Patent Appeals and Interferences that awarded priority to Novo (the 146 action). The district court reversed the award of priority, held that Novo’s patent was unenforceable due to inequitable conduct, and remanded the interference proceeding to the Board for the consideration of other matters. Novo appealed the remand order, 04-1580.

At the same district court, Novo sued BTG and Teva for infringement of the patent at issue in the interference proceeding. In the infringement proceeding, the district court held that Novo’s patent was invalid and unenforceable due to inequitable conduct. Novo appealed the judgment, 04-1581.

Concerning the appeal of the remand order, Novo does not argue that the order is appealable. Novo argues that the dismissal order should state that it is “without prejudice.” It is not this court’s usual practice to label dismissals as either with or without prejudice.

Concerning Novo’s suggestion that the briefing schedule should be stayed pending disposition of the remand proceedings and any appeal related thereto, we deem the better course is to allow the briefing schedule to proceed in 04-1581.

Accordingly,

IT IS ORDERED THAT:

(1) BTG’s motion to dismiss 04-1580 as premature is granted. Each side shall bear its own costs in 04-1580.

(2) Novo’s motion to stay the briefing schedule in 04-1581 is denied. Novo’s brief is due within 80 days of the date of filing of this order.  