Opinion
Misc. Nos. 952, 953.
September 24, 2010.
On Petition for Permission to Appeal pursuant to 28 U.S.C. § 1292(b) from the United States District Court for the District of Delaware in case nos. 04-CV-1436, 06-CV-0404, 08-CV-0371, and 08-CV-0373, Judge Joseph J. Farnan, Jr.
On Petition for Permission to Appeal.
ORDER
Nokia et al. and Fujifilm et al. petition for permission to appeal orders certified by the United States District Court for the District of Delaware as ones involving a controlling issue of law as to which there is substantial ground for difference of opinion and for which an immediate appeal may materially advance the ultimate termination of the litigation. St. Clair Intellectual Property Consultants, Inc. opposes. Nokia and Fujifilm move for leave to file a reply. St. Clair opposes. Fujifilm moves without opposition to consolidate these petitions.
These two petitions stem from suits brought by St. Clair in the District of Delaware alleging infringement of four related patents (the Roberts Patents). In these cases, the district court has adopted the claim construction order from a separate prior suit brought by St Clair against Fuji also involving the Roberts Patents ( Fuji I). Final judgment in Fuji I was issued in 2009 in favor of St. Clair and is now currently on appeal before this court. The Fuji I appeal has been fully briefed and is scheduled for oral argument in October of 2010.
In late February 2010 the district court adopted the Fuji I claim construction order. The following month, the petitioners sought to file an amicus brief in Fuji I. That motion was denied by this court on April 30, 2010. The petitioners also requested that the district court certify the claim construction order for interlocutory appeal. The district court certified the order for interlocutory appeal on July 20, 2010. Ultimately, however, this court must exercise its own discretion in deciding whether it will grant permission to appeal interlocutory orders certified by a trial court. See In re Convertible Rowing Exerciser Patent Litigation, 903 F.2d 822 (Fed. Cir. 1990); 28 U.S.C. § 1292(c)(1).
Granting the petitions under these circumstances is not warranted. Unlike Regents of the Univ. of California v. Dako North America, Inc., 477 F.3d 1335, 1336-37 (Fed. Cir. 2007) in which this court granted immediate appeal of a claim construction order when intertwined with the issues in a pending appeal, the 1292(b) petitions here were brought well after the court expended resources preparing for oral argument in Fuji I. We see no reason to delay proceedings in that case on these grounds and therefore deny the petitions.
Accordingly,
IT IS ORDERED THAT;
(1) The petitions for permission to appeal are denied.
(2) The motion to consolidate is granted. The revised official caption is reflected above.
(3) The motion for leave to file a reply is granted.