Sinochem v. ITC, No. 09-1563 (Fed. Cir. Dec. 17, 2009)

SCHALL, Circuit Judge.

ORDER

The International Trade Commission moves to dismiss this appeal. Sinochem Modern Environmental Protection Chemicals (XI'AN) Co. Ltd. et al. (Sinochem) oppose.

Pursuant to 19 U.S.C. § 1337(c), only a party adversely affected by a final determination of the ITC may appeal to this court. Surface Technology, Inc. v. Int'l Trade Comm'n, 780 F.2d 29, 30 (Fed. Cir. 1985). Here, the ITC made a final determination of no Section 337 violation. The complainants filed an appeal in this court, 2009-1513. Sinochem also filed an appeal, in the nature of a cross-appeal, on the ground that the ITC rejected some of its patent invalidity arguments. However, it is2 only nécessary and appropriate to file a cross-appeal when a party seeks to enlarge its own rights under the judgment or to lessen the rights of its adversary under the judgment. Bailey v. Dart Container Corp. of Michigan, 292 F.3d 1360, 1362 (Fed. Cir. 2002) (citation omitted). Thus, a party must file a cross-appeal when acceptance of the argument it wishes to advance would result in a reversal or modification of the judgment, rather than an afÏrmance. Id. That is not the case here because even if Sinochem’s arguments concerning invalidity are accepted, the final determination would still be one of no Section 337 violation, which would result in an afÏrmance. Sinochem may raise its arguments concerning invalidity in its brief as an appellee in 2009-1513.

Accordingly, IT IS ORDERED THAT:

(1) The motion to dismiss this appeal is granted. All other pending motions are moot.

(2) Each side shall bear its own costs.

FOR THE COURT

DEC 1 7 2009

/s/ Jan Horbaly

Date Jan Horbaly

Clerk

ce: Alex Menchaca, Esq. vs.c ourt HL For

THE FEDERAL CIRCUIT Paul M. Bartkowski, Esq.

$19 DEC 17 2009

MANDATE: DEC 17 2009 JAN HORBALY

ISSUED AS A

2009-1563 2