In a nonprecidential opionion, the U.S. Court of Appeals for the Federal Circuit dismissed an appeal by Biopolymer Engineering (Biothera) as moot after it appealed a District Court order granting summary judgment of noninfringement by Immunocorp and Biotec Pharmacon ASA (Biotec).  Biopolymer Engineering and MIT v. Immunocorp and Biotec Pharmacon ASA (2010-1096).

Biothera sued Biotec alleging that Biotec for infringement of 14 of Biothera’s patents. Both parties filed summary judgment motions concerning one of the patents in suit, United States Patent No. 5,702,719, a patent related to the use of purified beta (1,3) yeast extract glucan particles, in particular finely ground, as nutritional supplements and as dermatological agents.  The district court granted Biotec’s motion for summary judgment that the ‘719 patent was not infringed.

While the case was pending in the district court, the parties entered into a settlement agreement. Pursuant to the terms of the settlement agreement, the district court entered judgment of noninfringement, and Biothera appealed.

Biotec showed a letter indicating that, pursuant to the settlement agreement, it had agreed not to participate in this appeal. The court then directed Biothera to show cause why this case should not be dismissed as moot due to lack of a case or controversy.

Biothera said that this appeal is not moot because:

“[a] very real and current controversy exists as to whether defendants’ products infringe the ‘719 patent.” Biothera states that this appeal “will directly decide the legal rights between Biothera and the defendants. If Biothera fails to prevail in its appeal, the judgment of non-infringement of all of Defendant’s accused products will become final. However, if Biothera prevails in its appeal, the judgment of non-infringement will be reversed or vacated.”

A settlement agreement does not necessarily result in mootness of an appeal. However, if by reason of settlement or other circumstance a court can no longer grant effectual relief, a case becomes moot and must be dismissed:

Based on Biothera’s response and the court’s review of the settlement agreement, that this court cannot grant any effectual relief to Biothera. Biothera has not shown that any claim for monetary or other relief is contingent on this court’s determination. Under these circumstances, this case does not present a “definite and concrete [case or controversy], touching the legal relations of parties having adverse legal interests.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937). In this case, because the court cannot grant Biothera any effectual relief, there is no case or controversy and the appeal must be dismissed.

In addition, when a case becomes moot due to settlement, vacatur is not justified in the absence of exceptional circumstances. In this case, Biothera did not show that exceptional circumstances warrant vacatur.

Request denied.

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