Miken Composites, L.L.C. v. Wilson Sporting Goods Co.

125 F. App'x 298

• Court: Court of Appeals for the Federal Circuit
• Decided: March 7, 2005
• Docket: Misc. No. 783
• Status: Published

Opinion

ORDER

SCHALL, Circuit Judge.

Miken Composites, L.L.C. petitions without opposition 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(d)(2). Miken requests that if the petition is granted, the appeal be consolidated with Wilson Sporting Goods Co. v. Hillerich & Bradsby Co., 05-1103. Hillerich & Bradsby Co. submit an opposition to Miken’s request to consolidate Miken’s appeal (if permitted) with 05-1103.

In this case, Miken filed a complaint for declaratory judgment of noninfringement, invalidity and unenforceability of Wilson’s patent. Wilson counterclaimed, alleging certain Miken products infringe three claims of its patent. The district court held a Markman hearing and certified its claim construction order pursuant to section 1292(b). Minken wishes to appeal the district court’s construction of one of the three patent claims at issue. Miken argues that the appeal should be allowed because, among other things, there are common claim construction issues in the pending Hillerich & Bradsby, 05-1103 appeal and the district courts in these two matters have reached different conclusions in construing claims of the patent at issue.

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 conclude that interlocutory appeal is not warranted.

Accordingly,

IT IS ORDERED THAT:

(1) The petition for permission to appeal is denied.

(2) The motion to consolidate is moot.