Miscellaneous Docket No. 922 CLS BANK INTERNATIONAL v. Defendant/Counterclaim

NOTE: This order is nonprecedential.

# United States Court of Appeals for the Federal Circuit

Miscellaneous Docket No. 922

CLS BANK INTERNATIONAL,
Plaintiff/Counterclaim Defendant-
Petitioner,

and
CLS SERVICES LTD.,

Counterclaim Defendant-Petitioner,
V.
Defendant/Counterclaim Plaintiff-
Respondent.

ALICE CORPORATION PTY. LTD.,

On Petition for Permission to Appeal pursuant to 28 U.S.C. § 1292(b)
from the United States District Court for the District of Columbia
in case no. 07-CV-974, Judge Rosemary M. Collyer.

ON PETITION FOR PERMISSION TO APPEAL

Before MAYER, BRYSON, and DYK, Circuit Judges.
DYK, Circuit Judge.

## ORDER

CLS Bank International et al. (CLS Bank) petitions for permission to appeal an
order certified by the United States District Court for the District of Columbia as one
involving controlling issues 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. Alice Corporation Pty. Ltd. opposes. CLS Bank replies.

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The district court granted CLS Bank's motion for certification for interlocutory
appeal on two issues: (1) whether a system located entirely outside the United States
can be "used" within the United States, and (2) whether a method performed outside the
United States can be "sold" or "offered for sale" in the United States within the meaning
of 35 U.S.C. § 271(a).

Ultimately, this court must exercise its own discretion in deciding whether it will
grant permission to appeal interlocutory orders certified by a trial court. See In re
Convertible Rowing Exerciser Patent Litigation, 903 F.2d 822 (Fed. Cir. 1990); 28
U.S.C. § 1292(c)(1). Given the posture of this case below, we determine that it would
be more appropriate for the trial court to complete its proceedings rather than for us to
review the issues at this interlocutory stage.

Accordingly,

IT IS ORDERED THAT:

The petition for permission to appeal is denied.

FOR THE COURT

FEB 0 2. 2010

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc:
Steven J. Glassman, Esq.
Ryan T. Scarborough, Esq.
s19

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
FEB 02 2010

JAN HORBALY
CLERK

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