Kingsdown Medical Consultants, Ltd. and E.r. Squibb & Sons,inc., Plaintiffs-appellants, v. Hollister Incorporated, Defendant-appellee, 866 F.2d 1398 (Fed. Cir. 1989)

Appealed from U.S. District Court, Northern District of Illinois; James F. Holderman, Judge.

Garland P. Andrews, Richards, Harris, Medlock & Andrews, of Dallas, Tex., for plaintiffs-appellants.

James T. Fitzgibbon, Lockwood Alex Fitzgibbon & Cummings, Chicago, Ill., for defendant-appellee. Angelo J. Bufalino, Lockwood Alex Fitzgibbon & Cummings, Chicago, Ill., of counsel.

Before MARKEY, Chief Judge, SMITH and ARCHER, Circuit Judges.

ORDER

MARKEY, Chief Judge.

The present appeal is from an October 27, 1988 Order of the district court, issued during the pendency of Appeal No. 88-1265 before this court. The Order appealed from awarded attorney fees and costs and found the case exceptional. The basis of the Order was the district court's previous judgment based on a determination that the patent had been procured through inequitable conduct. That judgment was reversed by this court on December 21, 1988 in Appeal No. 88-1265. Because the Order appealed from was based upon a judgment that has now been reversed, the Order must be vacated.

It is unnecessary to consider the parties' motions for consolidation, reversal, and remand of the issues decided in the vacated Order. The case has been remanded for such proceedings as the district court may deem appropriate. Kingsdown Medical Consultants, Ltd. v. Hollister, Inc., 863 F.2d 867 (Fed. Cir. 1988). The motions will therefore be denied as moot.

Accordingly, it is ORDERED:

(1) The district court's Order of October 27, 1988 is vacated.