Zoltek Corp. v. United States

96 F. App'x 711

Opinion

ON PETITION FOR PERMISSION TO APPEAL

SCHALL, Circuit Judge.

ORDER

Zoltek Corporation petitions for permission to appeal an order certified by the Court of Federal Claims as 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). The United States responds and petitions for permission to appeal another order certified by the Court of Federal Claims. Zoltek opposes. The United States replies.

Zoltek sued the United States regarding the United States’ alleged use of a process for which Zoltek has a patent. In one order, the Court of Federal Claims decided that Zoltek could not sue for compensation pursuant to 28 U.S.C. § 1498(a) because the claim arose in another country. In a second order, the Court of Federal Claims decided that it did have jurisdiction over Zoltek’s complaint because it could be brought as a takings case pursuant to the Tucker Act. Thereafter, the Court of Federal Claims certified both orders for permissive appeal.

In its discretion, this court determines 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). In this case, the circumstances warrant granting the petitions.

Accordingly,

IT IS ORDERED THAT:

The petitions for permission to appeal are granted. The United States will be designated as the appellant and Zoltek will be designated as the cross-appellant.