Nisus Corp. v. Perma-Chink Systems, Inc.

107 F. App'x 225

• Court: Court of Appeals for the Federal Circuit
• Decided: August 6, 2004
• Docket: No. MISC. 768
• Status: Published

Opinion

ORDER

PROST, Circuit Judge.

Perma-Chink Sytems, Inc. petitions for permission to appeal the orders certified by the United States District Court for the Eastern District of Tennessee pertaining to assignor estoppel as involving controlling questions 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). Nisus Corporation has not responded.

In the order where the district court certified the issue of assignor estoppel pursuant to § 1292(b), (c)(1) (the subject of this petition), it also granted Nisus’s motion for Fed.R.Civ.P. 54(b) certification of the summary judgment ruling of noninfringement (Nisius’s appeal, 04-1454).

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, Nisus seeks review of part of the district court’s order pursuant to the district court’s Rule 54(b) certification. PermaChink seeks review of the remaining part of the order (and related certified orders) in this petition. We believe that judicial efficiency would be best served by granting Perma-Chink’s petition and reviewing the order as a whole. Perma-Chink’s appeal, once a number is assigned, should be consolidated with Nisus’s appeal, 04-1454. Perma-Chink’s appeal shall be treated as a cross-appeal.

Accordingly,

IT IS ORDERED THAT:

(1) Perma-Chink’s petition for permission to appeal is granted.

(2) Perma-Chink’s appeal, once a number is assigned, shall be consolidated with 04-1454, and treated as a cross-appeal.