St. Clair Intellectual Property Consultants, Inc. v. Nokia Corporation and Nokia Inc.

NOTE: This order is nonprecedential.

# United States Court of Appeals for the Federal Circuit

ST. CLAIR INTELLECTUAL PROPERTY
CONSULTANTS, INC.,
Plaintiff-Respondent,
V.
NOKIA CORPORATION AND NOKIA INC.,
Defendants-Petitioners,
AND
HEWLETT-PACKARD COMPANY,
Defendant-Petitioner,
AND
PALM, INC., KYOCERA WIRELESS CORP., AND
KYOCERA SANYO TELECOM, INC. (NOW KNOWN AS
KYOCERA COMMUNICATIONS, INC.),
Defendants-Petitioners,
AND
HTC CORPORATION, HTC (BVI) CORP., AND HTC
AMERICA, INC.,
Defendants-Petitioners,
AND
RESEARCH IN MOTION, LTD. AND RESEARCH IN
MOTION CORP.,
Defendants-Petitioners.

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## Miscellaneous Docket No. 952

On Petition for Permission to Appeal pursuant to 28
U.S.C. § 1292(b) from the United States District Court for
the District of Delaware in case nos. 04-CV-1436, 06-CV-
0404, and 08-CV-0371, Judge Joseph J. Farnan, Jr.

ST. CLAIR INTELLECTUAL PROPERTY
CONSULTANTS, INC.,
Plaintiff-Respondent,
V.

FUJIFILM HOLDINGS CORPORATION, FUJIFILM
CORPORATION, FUJI PHOTO FILM CO. LTD.,
FUJI PHOTO FILM U.S.A. INC., FUJIFILM U.S.A.,
INC. AND FUJIFILM AMERICA INC.,
Defendants-Petitioners,

Miscellaneous Docket No. 953

On Petition for Permission to Appeal pursuant to 28
U.S.C. § 1292(b) from the United States District Court for
the District of Delaware in case no. 08-CV-0373, Judge
Joseph J. Farnan, Jr.

ON PETITION FOR PERMISSION TO APPEAL

PER CURIAM.

## ORDER

Nokia et al. and Fujifilm et al. petition for permission
to appeal orders certified by the United States District
Court for the District of Delaware as ones involving a

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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. St. Clair Intellectual
Property Consultants, Inc. opposes. Nokia and Fujifilm
move for leave to file a reply. St. Clair opposes. Fujifilm
moves without opposition to consolidate these petitions.

These two petitions stem from suits brought by St.
Clair in the District of Delaware alleging infringement of
four related patents (the Roberts Patents). In these cases,
the district court has adopted the claim construction order
from a separate prior suit brought by St Clair against Fuji
also involving the Roberts Patents (Fuji I). Final
judgment in Fuji I was issued in 2009 in favor of St. Clair
and is now currently on appeal before this court. The Fuji
I appeal has been fully briefed and is scheduled for oral
argument in October of 2010.

In late February 2010 the district court adopted the
Fuji I claim construction order. The following month, the
petitioners sought to file an amicus brief in Fuji I. That
motion was denied by this court on April 30, 2010. The
petitioners also requested that the district court certify
the claim construction order for interlocutory appeal. The
district court certified the order for interlocutory appeal
on July 20, 2010. Ultimately, however, 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).

Granting the petitions under these circumstances is
not warranted. Unlike Regents of the Univ. of California,
477 F.3d 1335, 1336-37 (Fed. Cir. 2007) in which this
court granted immediate appeal of a claim construction
order when intertwined with the issues in a pending
appeal, the 1292(b) petitions here were brought well after

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the court expended resources preparing for oral argument
in Fuji I. We see no reason to delay proceedings in that
case on these grounds and therefore deny the petitions.

Accordingly,

IT IS ORDERED THAT:

(1) The petitions for permission to appeal are denied.

(2) The motion to consolidate is granted. The revised
official caption is reflected above.

(3) The motion for leave to file a reply is granted.

FOR THE COURT

SEP 2 4 2010

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Robert J. Benson, Esq. Charlene M. Morrow, Esq.

FILED U.S. COURT OF APPEALS FOR

David C. Doyle, Esq.

Collins J. Seitz, Jr., Esq.

THE FEDERAL CIRCUIT

Ronald J. Schutz, Esq. Steven J. Routh, Esq.

SEP 2 4 2010

Robert F. Perry, Esq.

JAN HORBALY

s19

CLERK