Bruckelmyer v. Ground Heaters, Inc.

81 F. App'x 315

• Court: Court of Appeals for the Federal Circuit
• Decided: October 21, 2003
• Docket: Misc. No. 742
• Status: Published

Opinion

CLEVENGER, Circuit Judge.

ORDER

Mark Bruckelmyer petitions for permission to appeal the order certified by the United States District Court for the District of Minnesota as one involving a controlling question of law as to which there is substantial ground for difference of opinion and for which an immediate appeal may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b), (c)(1). Ground Heaters, Inc. and T.H.E. Machine Company have not responded.

The district court certified that portion of its order holding that “the file wrapper contents of Canadian Patent No. 1,158,119 constitute a printed publication for purposes of 35 U.S.C. § 102(b).” Bruckelmyer asserts that the broader controlling question of law is whether “the contents of a foreign country’s patent file wrapper, available only in one foreign patent office, constitute a printed publication.”

This court determines for itself whether it will grant permission to appeal an interlocutory order certified by a trial court. See In re Convertible Rowing Exerciser Patent Litigation, 903 F.2d 822 (Fed.Cir.1990). Such a ruling is within this court’s complete discretion. Id. In this case, we are not convinced that immediate interlocutory review of the issues raised is warranted. Any review of the issues may await an appeal after final judgment.

Accordingly,

IT IS ORDERED THAT:

Bruckelmyer’s petition for permission to appeal is denied.