Nove: This order is nonprecedential. Gnited States Court of Appeals
for the federal Circuit
FURMINATOR, INC. (FORMERLY KNOWN AS FM
ACQUISITION CORP.),
Plaintiff-Appellee,
Vs
KIM LAUBE & CO., INC.,
Defendant-Appellant.
2011-1197
Appeal from the United States District Court for the Eastern District of Missouri in case no. 08-CV-0367, Judge E. Richard Webber.
ON MOTION
Before Prost, MAYER, and Moor, Circuit Judges.
ORDER
Kim Laube & Co., Inc. submits a motion, which we treat as a petition for a writ of mandamus within the context of this appeal, to stay a trial on damages in the2 FURMINATOR v. KIM LAUBE 2
United States District Court for the Eastern District of Missouri pending disposition of this appeal.
Kim Laube & Co., Inc. filed this appeal seeking review of the district court's summary judgment of infringement against it and the sanctions imposed on Kim Laube & Co., Inc. striking testimony and evidence. After entering an order disposing of infringement, validity, and other issues, the district court entered a subsequent order to schedule a hearing on damages and injunctive relief. The district court denied Kim Laube & Co., Inc.’s motion to stay the hearing pending appeal.
In its motion to this court, Kim Laube & Co., Inc. asks us to vacate the district court’s order setting a hearing on damages, arguing that its notice of appeal divested the district court of jurisdiction. We note that 28 U.S.C. § 1292(c)(2) gives this court jurisdiction to consider interlocutory appeals from judgments in civil actions for patent infringement “which would otherwise be appealable” and are “final except for an accounting.” But § 1292(c)(2) does not divest the district court of jurisdiction to proceed with a damages trial. As we explained in In re Calmar, 854 F.2d 461, 464 (Fed. Cir. 1988):
Hence it is clear that the purpose of the legislation, § 1292(c)(2), allowing interlocutory appeals in patent cases was to permit a stay of a damages trial. Thus there is no conflict between § 1292(c)(2) and [{Fed. R. Civ. P.] 62(a)’s grant of the discretion to stay or to proceed with the damages trial during the appeal. Indeed, in recognition of the district court’s discretion, this court has repeatedly denied, in unpublished opinions, motions to stay damages trials during appeals in patent cases. [Emphasis in original.]
33 FURMINATOR v. KIM LAUBE
Here, we do not find an abuse of discretion by the district court in the circumstances of this case.
Accordingly, It Is ORDERED THAT: The petition for a writ of mandamus is denied.
For THE CourrT
MAR 04 201 /s! Jan Horbaly
Date Jan Horbaly
Clerk
ce: Alan H. Norman, Esq.
Kent A. Rowald, Esq. U.S, COURT OF APPEALS FOR 823 THE FEDERAL CIRCUIT