Permissive Interlocutory Appeal Granted Where Matters Are Intertwined With Issues in Pending Appeals

Regents of the Univ. of Cal. v. Dako N. Am., Inc., __ F.3d __ (Fed. Cir. Feb. 14, 2007) (LOURIE, Clevenger, Moore) (N.D. Cal.: Patel)****
KEY WORDS:  INTERLOCUTORY APPEAL, CERTIFIED ORDER, CLAIM CONSTRUCTION

Fed Cir grants Regents' consented petition for discretionary interlocutory appeal under 28 USC 1292(b), of a claim construction order certified by the district court.  In two related appeals still pending in the Fed Cir, the Regents challenged the district court's denial of its preliminary injunction motion based on certain claim constructions.  While these related appeals were pending, the district court revisited its claim constructions, granted partial summary judgment of noninfringement for Dako, and certified the order for permissive appeal.  Because the claim constructions issues in the certified order are already at issue in the related appeal, the Fed Cir reasoned that there is no risk of piecemeal appeals or premature reviews, and that the more complete record provided by the certified order further judicial efficiency.  "Because the matters in the recent order are thus intertwined with the issues in the pending appeals, we determine that granting the petition in these unusual circumstances is warranted."