Opinion
No. 2011-1264.
May 4, 2011.
Appeal from the United States District Court for the Central District of California in case no. 10-CV-1251, Senior Judge Mariana R. Pfaelzer.
ON MOTION ORDER
Authenex, Inc. moves to stay the briefing schedule or for an extension of time to file its opening brief.
Authenex states that the district court has not entered a final judgment and that counterclaims for declara-tory judgments of noninfringement and invalidity remain pending. Because these claims remain pending, the appellant acknowledges that its appeal is premature. See Pause Tech. v. TiVO Inc., 401 F.3d 1290 (Fed. Cir. 2005) (dismissing appeal when counterclaim regarding invalid-ity remained pending; after case was fully briefed, grant-ing leave to seek remedial action at district court and allowing reinstatement of appeal under same docket number if within 30 days of dismissal a party appealed from a district court final judgment).
Accordingly,
IT IS ORDERED THAT:
(1) Authenex is directed to show cause within 14 days of the date of filing of this order why this appeal should not be dismissed for lack of jurisdiction.
Authenex may of course timely file a new appeal if and when the district court enters a final judgment deciding all claims.
(2) The briefing schedule is stayed. The motions are denied as moot.