Miscellaneous Docket No. 925 DDB TECHNOLOGIES, L.L.C. v. Mlb Advanced Media, L.p.

NOTE: This order is nonprecedential.

# United States Court of Appeals for the Federal Circuit

Miscellaneous Docket No. 925
DDB TECHNOLOGIES, L.L.C.,
Plaintiff-Respondent,

V.
MLB ADVANCED MEDIA, L.P.,

Defendant-Petitioner.

On Petition for Permission to Appeal pursuant to 28 U.S.C. § 1292(b)
from the United States District Court for the Western District of Texas in case no.
04-CA-0352, Judge Lee Yeakel.

ON PETITION FOR PERMISSION TO APPEAL

Before NEWMAN, CLEVENGER, and DYK, Circuit Judges.
DYK, Circuit Judge.

## ORDER

MLB Advanced Media, L.P. petitions for permission to appeal an order certified
by the United States District Court for the Western District of Texas as one involving a
controlling issue 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. DDB Technologies, L.L.C. opposes.

The district court issued an order on December 30, 2009 denying MLB's motion
to dismiss based on its conclusion that DDB had legal title to the patents in suit and
therefore standing to bring this infringement complaint against MLB. In so doing, the
court rejected MLB's assertion that the patents were covered by a patent assignment

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agreement between the inventor and his prior employer. The court held that the
contract terms assigning patent rights to the employer for inventions relating to or
suggested by the employee's work or business were ambiguous. Based on the
employer and employee's interactions and representations, the district court determined
those terms should be construed narrow to cover only intentions that had a practical
benefit to the employer, which the court found did not include the invention in question.

The district court, however, certified that the issue of standing with regard to
ownership of the patents in suit addressed in the December 30, 2009 order satisfied the
statutory requirements of 28 U.S.C. § 1292(b). Pursuant to that section, DDB seeks
review of the order. 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). We determine that granting the petition in these circumstances
is not warranted.

Accordingly,

IT IS ORDERED THAT:

The petition for permission to appeal is denied.

FOR THE COURT

FEB 2 4 2010

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

Cc:
George E. Quillin, Esq.
Michael D. Gannon, Esq.

s19

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
FEB 2 4 2010

JAN HORBALY
CLERK

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