NOTE: This order is nonprecedential. ijliniteb (!Court of §ppeali)
~tatei)
for tbe jfe beraI (!Circuit
WARSAW ORTHOPEDIC, INC.,
Plaintiff/Counterclaim Defendant-Appellant,
AND
MEDTRONIC SOFAMOR DANEK USA, INC.,
Counterclaim Defendant-Appellant,
AND
MEDTRONIC PUERTO RICO OPERATIONS CO.
AND MEDTRONIC SOFAMOR DANEK
DEGGENDORF, GMBH,
Counterclaim Defendants,
v.
NUVA SIVE, INC.,
Defendant / Counterclaimant-Cross Appellant.
2012-1263, -1266
Appeals from the United States District Court for the Southern District of California in Case No. 08-CV-1512, Judge Cathy Ann Bencivengo and Judge Michael M. Anello.
ON MOTION
2ORTHOPEDIC v. NUVASIVE 2 WARSAW
Before LOURIE, SCHALL, and DYK, Circuit Judges.
ORDER
Warsaw Orthopedic, Inc. and Medtronic Sofamor Danek USA, Inc. (collectively Warsaw) move to dismiss the appeals for lack of appellate jurisdiction. NuVasive opposes. Warsaw replies.
Warsaw brought this suit against NuVasive for patent infringement of nine patents. NuVasive counterclaimed for infringement of three of its own patents. The district court directed the parties to select three patents each for the first phase of litigation (Phase I). A jury decided the issues of infringement, validity, and damages for the patents involved in Phase I, and the judge subsequently decided the inequitable conduct allegations War
a~ainst
saw. The district court entered a final judgment for Phase I pursuant to Fed. R. Civ. P. 54(b) despite the fact that pre-judgment interest and the amount of ongoing royalties have not yet been decided by the court.
"A judgment is not final for Rule 54 (b) purposes unless it is 'an ultimate disposition of an individual claim entered in the course of a multiple claims action.'" W.L. Gore & Assocs., Inc. v. Int'l Med. Prosthetics Research Assocs., Inc., 975 F.2d 858, 8620863 (citing Sears, Roe buck & Co. v. Mackey, 351 U.S. 427, 432 (1956». We agree with Warsaw that even assuming Rule 54(b) would give this court jurisdiction over a claim that is "final except for an accounting" within the meaning of 28 U.s.C. § 1292(c)(2), the case is not "final" because the district court has not yet determined ongoing royalties. An ongo ing royalty is not the same as an accounting for damages. See Special Devices, Inc. v. Oea, Inc., 269 F.3d 1340, 1343 n.2 (Fed. Cir. 2001) ("'Accounting,' as used in [§3 3 ORTHOPEDIC v.
WABBAW NUVASlVE
1292(c)(2)], refers to infringement damages pursuant to 28 U.S.C. § 284.").
Accordingly, IT Is ORDERED THAT: (1) The motion is granted. The appeal is dismissed. (2) Each side shall bear its own costs.
FOR THE COURT
AUG 022012
lsI Jan Horbaly Date Jan Horbaly
Clerk
U.s~Yl~FOR
THE FEDERAL CIRCUIT cc: Luke L. Dauchot, Esq.
Frank E. Scherkenbach, Esq. AUG 022012 s24 JAN HlllBALV
CLmK _A_U_G_O _2 _2_01_2 __
Issued As A Mandate: