
    MASIMO CORPORATION, Plaintiff-Appellant, v. MALLINCKRODT INC. and Nellcor Puritan Bennett, Inc., Defendants-Appellees. Masimo Corporation, Plaintiff-Appellee, v. Mallinckrodt Inc. and Nellcor Puritan Bennett, Inc., Defendants-Appellants.
    No. 01-1038.
    United States Court of Appeals, Federal Circuit.
    Feb. 27, 2001.
    Before NEWMAN, GAJARSA, and LINN, Circuit Judges.
   ON MOTION

NEWMAN, Circuit Judge.

ORDER

Masimo Corporation moves to dismiss the appeal of Mallinckrodt Inc. and Nellcor Puritan Bennett, Inc. (Maliinckrodt), appeal no. 01-1084, because Maliinckrodt was the prevailing party. Maliinckrodt opposes. Masimo replies.

The district court denied Masimo’s motion for an injunction and granted Mallinckrodt’s motion for summary judgment of noninfringement. Masimo appealed, appeal no. 01-1038. Maliinckrodt also filed an appeal, appeal no. 01-1084, to challenge the district court’s order striking certain evidence and arguments from its summary judgment papers.

Clearly, Maliinckrodt was the prevailing party. Further, it is settled that “the 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.” United States v. American Railway Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 68 L.Ed. 1087 (1924). Thus, it is not necessary for Maliinckrodt, as the prevailing party, to appeal in order to challenge the ruling regarding the stricken evidence and arguments.

Accordingly,

IT IS ORDERED THAT:

(1) The motion to dismiss appeal no. 01-1084 is granted.

(2) A copy of this order shall be transmitted to the merits panel assigned to hear this case.  