Opinion
21-cv-02428-VC
12-17-2021
CORE OPTICAL TECHNOLOGIES, LLC, Plaintiff, v. JUNIPER NETWORKS INC, Defendant.
GRANTING MOTION FOR INTERLOCUTORY APPEAL AND A STAY RE: DKT. NO. 119
VINCE CHHABRIA UNITED STATES DISTRICT JUDGE
Juniper's motion for an interlocutory appeal and to stay proceedings is granted. District courts may certify orders “not otherwise appealable” if: (1) the order “involves a controlling question of law, ” (2) there exists “substantial ground for difference of opinion, ” and (3) granting an immediate appeal “may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). The order denying Juniper's motion to dismiss meets all three requirements. It resolved a legal question-whether Core Optical's failure to mark now bars its recovery of damages, even though it asserts only method claims in this case. There exists substantial ground for disagreement given confusion in Federal Circuit precedent on the issue. And granting an immediate appeal would materially advance the litigation: were the Federal Circuit to reverse the order denying Juniper's motion to dismiss, it seems likely (if not certain) that would terminate this litigation.
The case is stayed pending a decision by the Federal Circuit on whether to take the appeal. The parties should file a joint status report within 14 days of the Federal Circuit's decision. If the Federal Circuit declines to take the appeal, the parties should include a proposed litigation schedule in their status report. They may also request a case management conference if they believe one is necessary. The case management conference currently scheduled for January 16, 2022 is vacated.
IT IS SO ORDERED.