Proveris Scientific Corporation (formerly Known As Image Therm Engineering, Inc.) v. Innovasystems, Inc.

# NOTE: This order is nonprecedential.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

PROVERIS SCIENTIFIC CORPORATION
(FORMERLY KNOWN AS IMAGE THERM
ENGINEERING, INC.),
Plaintiff-Appellee,

V.
INNOVASYSTEMS, INC.,
Defendant-Appellant.

2011-1043

Appeal from the United States District Court for the
District of Massachusetts in case no. 05-CV-12424, Judge
William G. Young.

ON MOTION

Before GAJARSA, MAYER, and PROST, Circuit Judges.
GAJARSA, Circuit Judge.

ORDER

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Proveris Scientific Corporation moves to dismiss
Innovasystems, Inc.'s appeal. Innovasystems opposes.
Proveris replies.

In May of 2007, the United States District Court for
the District of Massachusetts entered final judgment
against Innovasystems for infringement of a Proveris
patent. As part of the judgment, the district court entered
a permanent injunction prohibiting Innovasystems from
"making, using, selling, offering, for sale or importing into
or exporting out of the United States" its infringing
products. On March 3, 2010, Proveris filed a motion for
contempt asserting that Innovasystems violated the
injunction. The court determined that it would first rule
on the issue of liability for contempt and then, if
necessary, consider the issue of sanctions. Subsequently,
the district court found Innovasystems to be in contempt.
Innovasystems appealed that order to this court.

Proveris asserts that because the district court has
not yet adjudicated the issue of sanctions, the district
court's order is not final and the present appeal is
premature. We agree with Proveris that Innovasystems'
appeal is premature because there is no final disposition
regarding sanctions. Pursuant to 28 U.S.C. § 1295(a)(1),
we have jurisdiction over a final decision of a district
court. A final decision is one that "ends the litigation on
the merits and leaves nothing for the court to do but
execute the judgment." Nystrom v. Trex Co., 339 F.3d
1347, 1350 (Fed. Cir. 2003). Thus, this appeal is
premature and must be dismissed.

Accordingly,

IT IS ORDERED THAT:

(1) The motion to dismiss is granted. Any other
pending motions are moot.

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(2) Each side shall bear its own costs.

FOR THE COURT

MAY 2 7 2011

/s/ Jan Horbaly

Date

Jan Horbaly

Clerk

cc:

Victor H. Polk, Jr., Esq. Timothy J. Szuhaj, Esq. John J. Waters

$20

Issued As A Mandate:

MAY 2 7 2011

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
MAY 2 7 2011

JAN HORBALY
CLERK