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Therasense, Inc. v. Becton, Dickinson and Co.

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Before LINN, FRIEDMAN, and DYK, Circuit Judges.

Abbott Diabetes Care, Inc. and Abbott Laboratories (collectively “Abbott”) appeal the final decision of the U.S. District Court for the Northern District of California, which entered judgment in accordance with a jury verdict that claims 11 and 12 of Abbott’s U.S. Patent No. 5,628,890 (“the ’890 patent”) are infringed by Becton, Dickinson & Co. and Nova Biomedical Corp. (collectively “BD/Nova”) but are invalid under 35 U.S.C. §§ 102, 103, and 112 ¶ 1, and denied Abbott’s post-trial motions for judgment as a matter of law (“JMOL”) and for new trial. Therasense, Inc. v. Becton, Dickinson & Co., No. 04-CV-2123 (N.D. Cal. Sept. 2, 2008). Although judgment was entered in favor of BD/Nova on all counts relating to the ’890 patent, BD/Nova cross-appeals the jury’s underlying finding that it infringes claims 11 and 12. Because we conclude that the district court did not err in denying Abbott’s post-trial motions on invalidity, and because we lack jurisdiction over BD/Nova’s cross-appeal, we dismiss the cross-appeal and affirm the judgment.

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