February 6, 2009.
Appeal from the United States District Court for the Southern District of New York in case no. 06-CV-0869, Lawrence M. McKenna, Senior Judge.
Richard A. DePalma, Thompson Hine, LLP, of New York, NY, argued for plaintiff-appellant. With him on the brief was Katheryn M. Ryan, Baker McKenzie LLP, of New York, New York.
Stephen L. Sulzer, Connolly Bove Lodge Hutz LLP, of Washington, DC, argued for defendant-appellee. With him on the brief was James P. Calve.
Before MAYER, SCHALL, and GAJARSA, Circuit Judges.
The district court's grant of summary judgment of non-infringement to CHF Industries, Inc. was based upon the point of novelty test, which was eliminated by Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc). Accordingly, the judgment of the district court is vacated and the case is remanded for reconsideration and further proceedings as appropriate in light of Egyptian Goddess.
Each side shall bear its own costs.
VACATED AND REMANDED.