Early last month, we reported that in the Amgen v. Hospira BPCIA litigation concerning Hospira’s Retacrit™ (epoetin alfa) biosimilar, Hospira had filed an appeal to the Federal Circuit from the Delaware district court’s final judgment of infringement and validity of one of the patents-in-suit, U.S. Patent No. 5,856,298, and the court’s award to Amgen of about $80 million. Subsequently, on October 15, 2018, Amgen filed a cross-appeal challenging, among other things, the district court’s judgment that Hospira had not infringed the other patent-in-suit, U.S. Patent No. 5,756,349.  On October 23, 2018, the Federal Circuit consolidated Amgen’s cross-appeal (Case No. 19-1102) into Hospira’s appeal (Case No. 19-1067), which is serving as the lead case.

Pursuant to the rules governing Federal Circuit appeals, because Amgen has filed a cross-appeal, there will be four rounds of appellate briefing instead of the usual three, with Hospira’s opening brief due on December 10, 2018, unless otherwise extended.