Everymd v. Rick Santorum, Mitt Romney, and Newt Gingrich

NOTE: This order is nonprecedential.
miuiteb ~tate5 <!Court of ~peaI5
for tbe jfeberaI <!Circuit
EVERYMD,
Plaintiff-Appellant,
v.
RICK SANTORUM, MITT ROMNEY, AND NEWT
GINGRICH,
Defendants-Appellees,
AND
GOLDMAN, SACHS, & CO. AND JPMORGAN CHASE
BANK, N.A.,
Defendants-Appellees,
AND
YAHOO, INC., AOL, INC., MICROSOFT, INC., AND
GOOGLE, INC.,
Defendants-Appellees.
2012-1491
Appeal from the United States District Court for the
Central District of California in case no. 12-CV-1623,
Judge Mariana R. pfaelzer.
Case: 12-1491 Document: 51 Page: 1 Filed: 10/15/2012

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EVERYMD v. RICK SANTORUM
Before LINN, DYK, and WALLACH, Circuit Judges.
DYK, Circuit Judge.
ORDER
2
Upon review of the parties' responses to the court's
August 8, 2012 order, the court determines whether this
appeal should be dismissed for lack of jurisdiction.
EveryMD appeals from a June 22, 2012 order of the
United States District Court for the Central District of
California staying proceedings in this patent infringement
action pending inter partes reexamination of the patent-
in-suit by the United States Patent and Trademark
Office.
Ordinarily, an order staying a case pending reexami-
nation is not a final appealable order pursuant to 28
U.S.C. § 1295(a)(1). Spread Spectrum Screening LLC v.
Eastman Kodak Co., 657 F.3d 1349, 1354 (Fed. Cir. 2011);
Slip Track Sys., Inc. v. Metal Lite, Inc., 159 F.3d 1337,
1340 (Fed. Cir. 1998); Gould v. Control Laser Corp., 705
F.2d 1340, 1341 (Fed. Cir. 1983). EveryMD, however,
contends that the order is appealable in this case on the
ground that the stay is of an indefinite period.
The fact that a stay of the trial court's proceedings
may leave the case in limbo for an undetermined period of
time does not render the final judgment rule inapplicable.
This court has recognized that an order granting a stay is
appealable only if it puts the plaintiff "effectively out of
court." See Gould, 705 F.3d at 1341; see also Slip Track,
159 F.3d at 1340 (allowing an immediate appeal when
stay pending completion of reexamination proceedings
would potential preclude party from raising issue of
priority of invention in any forum).
Thus, the critical inquiry as to whether this court has
jurisdiction over a stay order is not the duration of the
stay; it is whether the stay has the effect of surrendering
Case: 12-1491 Document: 51 Page: 2 Filed: 10/15/2012

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3 EVERYMD v. RICK SANTO RUM
the federal action. See Spread Spectrum, 657 F.3d at
1355. In view of the fact that EveryMD has not pointed to
any issue that will evade review, and the stay order states
that this action will resume after the reexamination
proceedings are completed, this court determines that
EveryMD has not demonstrated that immediate appeal is
warranted.
Accordingly,
IT Is ORDERED THAT:
(1) The appeal is dismissed.
(2) Each side shall bear its own costs.
FOR THE COURT
OCT 15 2012
Date
cc: Frank Michael Weyer, Esq.
John N. Zarian, Esq
Edward Daniel Robinson, Esq.
Stefani E. Shanberg, Esq.
George F. Pappas, Esq.
s26
/s/ Jan Horbaly
Jan Horbaly
Clerk
OCT 15 2012 Issued As A Mandate: ------
Case: 12-1491 Document: 51 Page: 3 Filed: 10/15/2012

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