Fast Memory Erase, LLC v. Intel Corporation, Numonyx B.v., Numonyx, Inc., Sony Ericsson Mobile Communications…

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

FAST MEMORY ERASE, LLC,
Plaintiff-Appellant,
v.
INTEL CORPORATION, NUMONYX B.V.,
NUMONYX, INC., SONY ERICSSON MOBILE
COMMUNICATIONS AB, SONY ERICSSON
MOBILE COMMUNICATIONS (USA), INC.,
AND APPLE INC.,
Defendants-Appellees,
AND
MOTOROLA, INC.,
Defendant-Appellee.

2010-1302

Appeal from the United States District Court for the
Northern District of Texas in case no. 10-CV-0481, Judge
Barbara M.G. Lynn.

FAST MEMORY ERASE, LLC,
Plaintiff-Appellee,

V.

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INTEL CORPORATION, NUMONYX B.V.,
NUMONYX, INC., SONY ERICSSON MOBILE
COMMUNICATIONS AB, SONY ERICSSON
MOBILE COMMUNICATIONS (USA), INC.,
AND APPLE INC.,
Defendants-Appellants,
AND
MOTOROLA, INC.,
Defendant-Appellee.

2010-1324

Appeal from the United States District Court for the
Northern District of Texas in case no. 10-CV-0481, Judge
Barbara M.G. Lynn.

## ON MOTION

Before LOURIE, FRIEDMAN, and MAYER, Circuit Judges.
LOURIE, Circuit Judge.

## ORDER

Fast Memory Erase, LLC moves to dismiss Intel Cor-
poration et al.'s (Intel) conditional cross-appeal, 2010-
1324. Intel opposes. Fast Memory replies.

Fast Memory brought this suit in the United States
District Court for the Northern District of Texas, alleging,
inter alia, that Intel infringed U.S. Patent Nos. 6,303,959.
Following briefing and a hearing, the district court issued
an order construing six terms from claim 1 of the 959
patent, including construing the term "source leakage" to

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mean "leakage from the source terminal to the substrate
terminal that occurs during source erase."

Conceding that Intel's accused products did not in-
fringe under the court's construction of "source leakage,"
Fast Memory joined Intel in stipulating to entry of a
judgment of non-infringement to allow Fast Memory to
appeal. On March 18, 2010, the court entered judgment
based on the parties' stipulation of non-infringement.
Fast Memory appealed. Intel also filed a cross-appeal
seeking review of the district court's claim construction of
terms other than "source leakage" if the judgment is
vacated and further proceedings are ordered.

Fast Memory moves to dismiss Intel's cross-appeal as
improper. "It is 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) (citing
United States v. Am. Ry. Express Co., 265 U.S. 425, 435
(1924)).

Here, Intel concedes that its cross-appeal does not in-
volve claim construction rulings implicated by the judg-
ment under review, but is rather an attempt to have this
court rule on claim terms not implicated by the judgment
to govern further proceedings below in the event such
proceedings are required. Such cross-appeals are im-
proper under Bailey. Intel cites Altiris, Inc. v. Symantec
Corp., 318 F.3d 1363 (Fed. Cir. 2003), IMS Tech, Inc. v.
Haas Automation, Inc., 206 F.3d 1422 (Fed. Cir. 2000),
and Budde v. Harley-Davidson, Inc., 250 F.3d 1369 (Fed.
Cir. 2001) in support of its cross-appeal. However, those
decisions did not hold that this court had jurisdiction over
the asserted cross-appeals and thus they do not support
asserting jurisdiction in this case over the cross-appeal.

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Because Intel's cross-appeal is improper, we grant the
motion and dismiss. Intel may, if appropriate, raise the
issues in its appellee's brief.

Accordingly,

IT IS ORDERED THAT:

(1) The motion to dismiss the cross-appeal is granted.
The revised official caption is reflected above.

(2) Each side shall bear its own costs with regard to
the cross-appeal.

FOR THE COURT

JAN 05 2011

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Jeffrey R. Bragalone, Esq.
Chris R. Ottenweller, Esq.
Russell E. Levine, Esq.

s19

Issued As A Mandate (For 2010-1324 Only): JAN 0 5 2011

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
JAN 05 2011

JAN HORBALY
CLERK