the Sollami Company v. Kennametal, Inc.

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-1345
THE SOLLAMI COMPANY,
Plaintiff-Appellant,
v.
KENNAMETAL, INC.,
Defendant-Appellee.
Appeal from the United States District Court for the Western District of Pennsylvania in
case no. 06-CV-0062, Judge Arthur J. Schwab.
ON MOTION
Before BRYSON, Circuit Judge, CLEVENGER, Senior Circuit Judge, and PROST,
Circuit Judge.
BRYSON, Circuit Judge.
O R D E R
Kennametal, Inc. moves to dismiss this appeal for lack of jurisdiction. The
Sollami Company opposes. Kennametal replies.
Sollami sued Kennametal for infringement of three patents. The parties moved
for summary judgment on various issues. It appears that as a result of the district
court’s rulings on the summary judgment motions, additional issues concerning
infringement of one of Sollami’s patents, U.S. Patent 6,585,326 (the ‘326 patent) and
issues raised by Kennametal’s counterclaims seeking declaratory judgments of invalidity
or unenforceability may require further resolution by the district court.

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Kennametal moved in the district court to stay further litigation pending
disposition by the United States Patent and Trademark Office of Sollami’s reissue
application concerning the ‘326 patent. The district court granted Kennametal’s motion
and Sollami appeals that order.
Kennametal contends that the court should dismiss Sollami’s appeal because the
district court’s order staying litigation pending reissue proceedings is not a final
appealable order. Sollami alleges that this court has jurisdiction because, inter alia, the
stay order effectively puts Sollami “out of court.”
In Gould v. Control Laser Corp., 705 F.2d 1340 (Fed. Cir. 1983), we held that an
order staying district court proceedings pending reexamination by the PTO was not
appealable. By contrast, in Slip Track Sys., Inc. v. Metal Lite, Inc., 159 F.3d 1337, 1340
(Fed. Cir. 1998), this court held that under the facts of that case, an order staying district
court proceedings pending reexamination by the PTO was an appealable order because
it effectively could put one of the appellants out of court. We explained that after the
PTO reexamination proceedings concluded, it was possible that the appellants would be
unable to raise the issue of priority of invention in the district court, and the stay order
was a “’final decision’ for appealability purposes.” Slip Track, 159 F.3d at 1340.
Sollami has not asserted that any patent issue would escape review by a federal
court if the case is stayed pending PTO proceedings. Instead, Sollami contends that
the case should not have been stayed because the PTO proceedings will not resolve an
issue related to the pending matters before the district court. Thus, Sollami has not
shown that the district court’s stay order effectively puts Sollami out of court. We have
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2008-1345 3
considered Sollami’s other arguments but remain convinced that we are without
jurisdiction over this appeal.
Accordingly,
IT IS ORDERED THAT:
(1) Kennametal’s motion to dismiss is granted.
(2) Each side shall bear its own costs.
FOR THE COURT
July 18, 2008 /s/ William C. Bryson
Date William C. Bryson
Circuit Judge
cc: Eric G. Soller, Esq.
Jeffrey T. Morris, Esq.
s20
ISSUED AS A MANDATE: July 18, 2008

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