En Banc Court Concludes It Has Jurisdiction over Patent Infringement Determinations When Damages and Willfulness Remain Undecided 11-1363 June 14, 2013 McAnulty, Timothy P. Decision, en bancLast Month at the Federal Circuit - July 2013Judges: Rader, Newman, Lourie, Dyk, Prost (author), Moore (concurring-in-part and dissenting-in-part), O'Malley (dissenting), Reyna (concurring-in-part and dissenting-in-part), Wallach (dissenting) [Appealed from: D. Del., Judge Robinson] In Robert Bosch, LLC v. Pylon Manufacturing Corp., Nos. 11-1363, -1364 (Fed. Cir. June 14, 2013), (en banc), the Federal Circuit held that 28 U.S.C. § 1292(c)(2) confers jurisdiction on the Court to hear appeals from patent infringement liability determinations (1) when a trial on damages has not occurred, and (2) when willfulness issues are outstanding and remain undecided. Robert Bosch, LLC (“Bosch”) sued Pylon Manufacturing Corp. (“Pylon”) for patent infringement, and Pylon later asserted patent infringement claims against Bosch.

Generally, leave to take an interlocutory appeal is granted for the same reasons that an interlocutory appeal to the court of appeals may be taken from an order of the district court. For bankruptcy appeals, district courts seek guidance from 28 U.S.C. § 1292 which guides courts of appeals when considering interlocutory appeals. Goldberg grappled with the analogy to this statute as the court considered the debtor’s efforts to appeal the grant of a preliminary injunction against it.Background of the Case The debtor filed a Chapter 11 bankruptcy in August, 2015.

In doing so, it noted that it was “join[ing] the Fifth Circuit’s well-reasoned conclusion” in Martin v. Halliburton, 618 F.3d 476, 485 & n.14 (5th Cir. 2010).ICTSI OREGON, INC. v. INTERNATIONAL LONGSHORE AND WAREHOUSE UNIONThe Court holds that it lacks appellate jurisdiction of orders certified under 28 U.S.C. § 1292(b) that address factual rather than legal issues.The panel: Judges O’Scannlain, Clifton, Nguyen, with Judge O’Scannlain writing the opinion.Key highlight: “When this court concludes that the question identified by the district court satisfies the requirements of § 1292(b), we have jurisdiction over any question within the four corners of the certified order—not just the identified controlling question. . . . Importantly, however, jurisdiction does not extend to other orders entered in the same case.”

Other courts have held differently. So the trial court certified the case for immediate appeal to the Second Circuit under 28 USC 1292(b), which creates an exception to the rule that you can't appeal anything from the district court until the case is over. Section 1292(b) allows the Court of Appeals to conclusively resolve a disputed or contentious legal issue right away, which can "materially advance the ultimate termination of the litigation."

Thus, determining whether the Claim Objection Order was interlocutory or final is required because that analysis, in turn, determines the relevant date from which the 14-day deadline runs.It is axiomatic that while a party may seek appellate review of an interlocutory order, the failure to do so is not a waiver of appellate review en toto. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 74 (1996) (“Nor is a plaintiff required to seek permission to take an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) in order to avoid waiving whatever ultimate appeal right he may have.”). Rather, the party may also wait until the case or proceeding in which the interlocutory order was entered results in a final judgment or order, which is appealable as of right.

The Board found that it lacked authority to certify questions for interlocutory appeal. The Board relied on (1) the plain language of 28 U.S.C. § 1295(a)(10), which states that the Federal Circuit has exclusive jurisdictions of appeals from “final decisions” of the Boards, and (2) 28 U.S.C. § 1292, which grants the courts of appeal jurisdiction over interlocutory appeals from district courts but which fails to mention the Boards. The ASBCA has handled this issue even-handedly, refusing both the government’s and contractors’ requests that it certify questions for interlocutory appeal.

Citrix opposed the appeal, arguing in part that the appeal of the sanctions order was premature because there had been no final determination of the amount of the attorneys’ fees. The Federal Circuit first explained that it had jurisdiction over an appeal of a “final” decision of a district court under 28 U.S.C. § 1295(a)(1) or of an interlocutory order as specified in 28 U.S.C. § 1292. In this case the Court concluded that while the decision on the infringement issue was final, the sanctions order fit neither of the reviewable categories; noting it was not a “final” order since the award of attorneys’ fees were not compensation for the injury giving rise to the action.

MONDIS TECHNOLOGY LTD. v. LG ELECTRONICS INC.Before Dyk, Prost, andHughes. Appeal from the U.S. District Court for the District of New Jersey.Summary: An order resolving all liability issues starts the clock for the 30 day time limit to file an interlocutory appeal under 28 U.S.C. § 1292(c)(2), even if it does not resolve all damages issues.Mondis Technology Ltd., Hitachi Maxell Ltd., and Maxell, Ltd. (collectively, “Mondis”) sued LG Electronics Inc. and LG Electronics U.S.A., Inc. (collectively, “LG”) for infringement of a patent covering a video display configured to receive video signals from an external source. The jury found that the asserted claims were valid, LG’s televisions infringed, and LG’s infringement was willful.

Bridgeport appealed on multiple grounds.The Federal Circuit first agreed that it can have jurisdiction over interlocutory injunction orders of district courts under 28 U.S.C. § 1292(c)(1), but only if the injunction has been modified. In order to determine if the Court has jurisdiction, it must “determine whether the [2013 Injunction] constitutes a modification, or is simply an interpretation or clarification.”

Though direct evidence of deceptive intent is rare, Belcher reinforces that patent challengers may prove inequitable conduct when deceptive intent is the “only reasonable inference” that can be drawn from an applicant’s conduct.The Federal Circuit’s Jurisdiction Over Interlocutory Orders: Mondis Technology Ltd. v. LG Electronics Inc.Pursuant to 28 U.S.C. § 1292(c)(2), “[t]he United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction of an appeal from a judgment in a civil action for patent infringement which would otherwise be appealable to the United States Court of Appeals for the Federal Circuit and is final except for an accounting” (emphasis added). However, as recently highlighted by Judge O’Malley, “it is becoming increasingly unclear exactly when a decision becomes final except for an accounting such that the time to file a timely appeal begins.”