Cook Biotech Inc. v. Acell, Inc.

123 F. App'x 968

• Court: Court of Appeals for the Federal Circuit
• Decided: November 29, 2004
• Docket: No. 775
• Status: Published

Opinion

ORDER

GAJARSA, Circuit Judge.

ACell, Incorporated et al. (ACell) petition for permission to appeal the order certified by the United States District Court for the Northern District of Indiana as one involving a controlling issue 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. See 28 U.S.C. § 1292(b), (c)(1). Cook Bio-tech Incorporated and Purdue Research Foundation (Cook) oppose. ACell replies.

ACell seeks permission to appeal an order that construed certain claim language and adopted jury instructions proposed by Cook. The district court denied ACell’s motion for summary judgment of noninfringement, noting that discovery is not completed. Trial is scheduled to begin May 31, 2005. In its petition for permission to appeal, ACell suggests accelerating the briefing schedule so that this appeal could be decided before the scheduled trial date.

This court must exercise its own discretion in deciding 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); 28 U.S.C. § 1292(d)(2) (“the Federal Circuit may, in its discretion, permit an appeal to be taken from such order”). We determine that granting the petition in these circumstances is not warranted.

Accordingly,

IT IS ORDERED THAT:

The petition for permission to appeal is denied.