
    ABBOTT LABORATORIES, Plaintiff-Appellee, v. ALRA LABORATORIES, INC., Defendant-Appellant.
    No. 02-1388.
    United States Court of Appeals, Federal Circuit.
    March 12, 2003.
    Before MICHEL, RADER, and GAJARSA, Circuit Judges.
   MICHEL, Circuit Judge.

ORDER

Abbott Laboratories moves to dismiss the appeal filed by Alra Laboratories, Inc. Alra opposes in part. Abbott replies. Alra moves for leave to file a surreply, with surreply attached.

Abbott sued Alra for infringement due to Alra’s filing of an abbreviated new drug application (ANDA). The district court ruled in Abbott’s favor and Alra appealed. The parties inform this court that the ANDA has been deemed withdrawn. Abbott argues that the appeal is moot and that the appeal should be dismissed. Alra also argues that the appeal is moot, that any dismissal of the appeal should be without prejudice to reinstatement should the status of the ANDA change, and that we should vacate the judgment below and remand with instructions to dismiss the complaint. Abbott opposes vacatur or dismissal of the complaint. In sum, both parties argue that the appeal should not go forward on the merits, but they disagree on how this court should resolve the appeal.

In this situation, U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994) provides guidance concerning what course this court may take. In that case, the Supreme Court discussed in what circumstances vacatur of a judgment may or may not be appropriate due to an asserted mootness of the appeal. “Of course, even in the absence of, or before considering the existence of, extraordinary circumstances, a court of appeals presented with a request for vacatur of a district-court judgment may remand the case with instructions that the district court consider the request....” Bancorp, 513 U.S. at 29, 115 S.Ct. 386. Thus, on remand, the district court may consider the parties’ arguments on which course to pursue.

Accordingly,

IT IS ORDERED THAT:

(1) Abbott’s motion to dismiss is denied.

(2) Alra’s motion for leave to file a surreply is granted.

(3) This appeal is remanded to the United States District Court for the Northern District of Illinois for further proceedings. 
      
       Alra’s motion for an extension of time to file the opposition is granted.
     