Opinion
2022-1566
06-01-2022
LASHIFY, INC., Appellant v. INTERNATIONAL TRADE COMMISSION, Appellee QINGDAO HOLLYREN COSMETICS CO., LTD, dba Hollyren, QINGDAO XIZI INTERNATIONAL TRADING CO., LTD, dba Xizi Lashes, QIANGDAO LASHBEAUTY COSMETIC CO., LTD, dba Worldbeauty, KISS NAIL PRODUCTS, INC., ULTASALON, COSMETICS & FRAGRANCE, INC., WALMART, INC., CVS PHARMACY, INC., ARTEMIS FAMILY BEGINNINGS, INC., dba Lilac Street, ALICIA ZENG, Intervenors
This order is nonprecedential.
Appeal from the United States International Trade Commission in Investigation No. 337-TA-1226.
ON MOTION
Before Lourie, Taranto, and Hughes, Circuit Judges.
ORDER
PER CURIAM
Appellee International Trade Commission moves to dismiss Appeal No. 2022-1566 as premature. ECF No. 21. Lashify, Inc. opposes dismissal and requests instead that the appeal be held in abeyance. ECF No. 26.
Lashify filed a notice of appeal seeking review of the Commission's decision not to review certain non-infringement findings regarding U.S. Patent No. 10, 721, 984. ECF No. 1-2 at 2. But even Lashify's notice characterized the Commission's decision as not "final" for purposes of judicial review under Tessera, Inc. v. ITC, 646 F.3d 1357, 1367-69 (Fed. Cir. 2011) (citing 19 U.S.C. § 1337(c)), based on the Commission's pending consideration of certain other issues in the investigation. ECF No. 1-2 at 4. We agree with the parties that, under the circumstances of this case, we lack jurisdiction over Lashify's appeal because there has been no final determination. Having considered the parties' arguments, the court determines that dismissal (rather than a stay) is appropriate in this case, see, e.g., A & J Mfg., LLC v. ITC, 584 Fed.Appx. 933 (Fed. Cir. 2014), but the court will allow Lashify to reinstate its appeal if, within 60 days of the entry of this order, it appeals from a final determination.
Accordingly, It Is Ordered That:
(1) The appeal is dismissed for lack of jurisdiction, subject, however, to reinstatement under the same docket number without payment of any additional filing fee if, within 60 days of the entry of this order, Lashify appeals from the entry of a final determination. The mandate shall issue simultaneously with this order.
(2) Each party shall bear its own costs.