
    PURDUE PHARMA L.P., The Purdue Frederick Company, The P.F. Laboratories, Inc., and The Purdue Pharma Company, Plaintiffs/Counterclaim Defendants-Appellants, and Euroceltique S.A., Counterclaim Defendant, v. ENDO PHARMACEUTICALS INC., Defendant/Counterclaimant-Cross Appellant, and Endo Pharmaceuticals Holdings Inc., Defendant-Cross Appellant. Purdue Pharma L.P., The Purdue Frederick Company, The P.F. Laboratories, Inc., and The Purdue Pharma Company, Plaintiffs/Counterclaim Defendants-Appellees, and Euroceltique S.A., Counterclaim Defendant, v. Endo Pharmaceuticals Inc., Defendant/Counterclaimant-Appellant, and Endo Pharmaceuticals Holdings Inc., Defendant-Appellant.
    Nos. 04-1189, 04-1347, 04-1357.
    United States Court of Appeals, Federal Circuit.
    June 18, 2004.
    Edward V. Filardi, Principal Attorney, Skadden, Arps, Nicholas L. Coch, Donald Luther Rhoads, Kramer, Levin, of Counsel, Constance S. Huttner, Douglas R. Nemec, David L. Cohen, Mark D. Baker, Skadden, Arps, of Counsel, New York, NY, for Defendant-Cross Appellant.
    Scott A.M. Chambers, Principal Attorney, Patton Boggs, McLean, VA, Nancy J. Linck, Hansjorg Sauer, Guilford Pharmaceuticals, of Counsel, Baltimore, MD, for Amicus Curiae.
    Herbert F. Schwartz, Principal Attorney, Richard A. Inz, Duane-David Hough, Denise L. Loring, Gerald J. Flattmann, Jr., Pablo D. Hendler, Fish & Neave, of Counsel, New York, NY, Robert J. Goldman, Fish & Neave, of Counsel, Palo Alto, CA, Seth P. Waxman, Jonathan G. Cedarbaum, Edward C. Dumont, Wilmer Cutler, of Counsel, Washington, DC, for Plaintiff-Appellant.
    Before MAYER, Chief Judge, RADER and DYK, Circuit Judges.
   RADER, Circuit Judge.

ORDER

Purdue Pharma L.P. et al. (Purdue) submit two motions to dismiss Endo Pharmaceuticals Inc. and Endo Pharmaceuticals Holdings Inc.’s (Endo) appeal 04-1226. Endo opposes both motions. Purdue replies. Purdue moves to dismiss Endo’s appeal 04-1347. Endo opposes. Purdue replies.

Purdue brought suit against Endo alleging that Endo’s proposed generic copy of Purdue’s product OxyContin, a controlled release oxycodone analgesic designed to treat moderate to severe pain, infringed three of Purdue’s patents. The United States District Court for the Southern District of New York, No. 00-CV-8029 (Jan. 5, 2004) determined that Endo had infringed the patents but that the patents were unenforceable due to inequitable conduct. The district court entered judgment on the infringement claim pursuant to Fed. R.Civ.P. 54(b).

The first appeal, 04-1189, is Purdue’s appeal from the injunction. The second appeal, 04-1226, is Endo’s subsequent cross-appeal. The third appeal, 04-1347, is Endo’s cross-appeal from the district court’s Rule 54(b) order. The fourth appeal, 04-1357, is Purdue’s appeal of the Rule 54(b) order. At issue in these motions are Endo’s two cross-appeals.

Purdue’s two motions to dismiss Endo’s first cross-appeal, 04-1226, are granted. Endo has no right to file a cross-appeal from the order enjoining Purdue. However, as discussed below, Endo’s second cross-appeal, 04-1347, of the district court’s Rule 54(b) judgment is proper.

Purdue argues that the court lacks jurisdiction over Endo’s second cross appeal, 04-1347, because the judgment that Endo appealed from resolved no claim or cause of action adversely to Endo. Endo argues that it must file a cross-appeal from the district court’s ruling that it infringes even though Purdue’s patents were held unenforceable. Relying on Radio Steel & Manufacturing Co. v. MTD Products, Inc., 731 F.2d 840 (Fed.Cir.1984), Endo contends that it “must present its non-infringement argument in a cross appeal because acceptance of that argument would grant its counterclaim for a non-infringement declaration that was denied below, thereby modifying the district court’s judgment.” We agree with Endo and thus deny Purdue’s motion to dismiss 04-1347.

Accordingly,

IT IS ORDERED THAT:

(1) Purdue’s two motions to dismiss 04-1226 are granted. The revised official caption is reflected above.

(2) Each party shall bear its own costs for 04-1226.

(3) Purdue’s motion to dismiss 04-1347 is denied.

(4) Purdue’s reply brief in 04-1189, - 1347, -1357 is due within 14 days of the date of filing of this order.  