Sinochem Modern Environmental Protection Chemicals (xi'an) Co., Ltd., Sinochem… v. International Trade Commission

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# United States Court of Appeals for the Federal Circuit

2009-1563

SINOCHEM MODERN ENVIRONMENTAL PROTECTION
CHEMICALS (XI'AN) CO., LTD., SINOCHEM ENVIRONMENTAL
PROTECTION CHEMICALS (TAICANG) CO., LTD.,
SINOCHEM NINGBO LTD., and SINOCHEM (U.S.A.) INC.,

Appellants,

V.
INTERNATIONAL TRADE COMMISSION,

Appellee.

On Appeal from the United States International Trade Commission in
Investigation No. 337-TA-623.

ON MOTION

Before MICHEL, Chief Judge, SCHALL and LINN, Circuit Judges.
SCHALL, Circuit Judge.

## ORDER

The International Trade Commission moves to dismiss this appeal. Sinochem
Modern Environmental Protection Chemicals (XI'AN) Co. Ltd. et al. (Sinochem) oppose.
Pursuant to 19 U.S.C. § 1337(c), only a party adversely affected by a final
determination of the ITC may appeal to this court. Surface Technology, Inc. v. Int'l
Trade Comm'n, 780 F.2d 29, 30 (Fed. Cir. 1985). Here, the ITC made a final
determination of no Section 337 violation. The complainants filed an appeal in this
court, 2009-1513. Sinochem also filed an appeal, in the nature of a cross-appeal, on
the ground that the ITC rejected some of its patent invalidity arguments. However, it is

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only necessary and appropriate to file a cross-appeal when a party seeks to enlarge its
own rights under the judgment or to lessen the rights of its adversary under the
judgment. Bailey v. Dart Container Corp. of Michigan, 292 F.3d 1360, 1362 (Fed. Cir.
2002) (citation omitted). Thus, a party must file a cross-appeal when acceptance of the
argument it wishes to advance would result in a reversal or modification of the
judgment, rather than an affirmance. Id. That is not the case here because even if
Sinochem's arguments concerning invalidity are accepted, the final determination would
still be one of no Section 337 violation, which would result in an affirmance. Sinochem
may raise its arguments concerning invalidity in its brief as an appellee in 2009-1513.

Accordingly,

IT IS ORDERED THAT:

(1)
The motion to dismiss this appeal is granted. All other pending motions
are moot.

(2)
Each side shall bear its own costs.

FOR THE COURT

DEC 1 7 2009

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc:
Alex Menchaca, Esq.
Paul M. Bartkowski, Esq.

s19

DEC 1 7 2009

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT

DEC 17 2009

ISSUED AS A MANDATE:

JAN HORBALY
CLERK

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