Western Union v. Moneygram, No. 10-1080 (Fed. Cir. May 3, 2010)

BRYSON, Circuit Judge.

ORDER

2MoneyGram Payment Systems, Inc. moves to dismiss The Western Union Company's cross-appeal, 2010-1200, and for costs associated with filing its motion. Western Union opposes. MoneyGram replies.

Western Union sued MoneyGram for infringement of patents related to two money-transfer systems used by MoneyGram. One system was used before 2006 and. the second was used after 2006. A jury found that the pre-2006 system infringed the asserted claims literally and that the post-2006 system infringed but only under the doctrine of equivalents. The district court denied Western Union's renewed motion for judgment as a matter of law regarding literal infringement of the post-2006 system. MoneyGram appealed to this court. Western Union filed a cross-appeal to assert that the post-2006 system also literally infringed its patent.

MoneyGram argues that because Western Union prevailed below and is not seeking to reverse or modify the district court’s judgment of infringement, Western Union’s cross-appeal must be dismissed for lack of jurisdiction. We agree. Voda v. Cordis Corp., 536 F.3d 1311, 1324 n.4 (Fed. Cir. 2008) (dismissing cross-appeal seeking to challenge ruling on literal infringement when district court found infringement under the doctrine of equivalents). A party lacks standing to cross-appeal unless: it is adversely affected by the judgment it seeks to challenge. TypeRight Keyboard Corp. v. Microsoft Corp., 374 F.3d 1151, 1156 (Fed. Cir. 2004); Bailey v. Dart Container Corp., 292 F.3d 1360, 1362 (Fed. Cir. 2002). However, an “appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it.” United States v. American Ry.3 Express Co., 265 U.S. 425, 435 (1924). See also Datascope Corp. v. SMEC, Inc., 879 F.2d 820, 822 n. 1 (Fed. Cir. 1989) (appellee may assert alternative grounds for afÏrming the judgment that are supported by the record).

Accordingly, IT IS ORDERED THAT:

(1) MoneyGram’s motion to dismiss Western Union's appeal, 2010-1200, is granted.

(2) |MoneyGram’s motion for costs is denied. (3) Each side shall bear its own costs in 2010-1200. (4) The revised ofÏcial caption for 2010-1080 et al. is reflected above.

FOR THE COURT

MAY 03 2010 Is/ Jan Horbaly

Date Jan Horbaly

Clerk

ce: David E. Sipiora, Esq.

Emmett J. McMahon, Esq.

s20 ISSUED AS A MANDATE (as to 2010-1200 only): MAY 0.3 2010

us, court Fearon

MAY 03 2010

JAN HORBALY

CLERK