Lashify, Inc. v. International Trade Commission

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LASHIFY, INC.,
Appellant
v.
INTERNATIONAL TRADE COMMISSION,
Appellee
QINGDAO HOLLYREN COSMETICS CO., LTD, dba
Hollyren, QINGDAO XIZI INTERNATIONAL
TRADING CO., LTD, dba Xizi Lashes, QIANGDAO
LASHBEAUTY COSMETIC CO., LTD, dba
Worldbeauty, KISS NAIL PRODUCTS, INC., ULTA
SALON, COSMETICS & FRAGRANCE, INC.,
WALMART, INC., CVS PHARMACY, INC., ARTEMIS
FAMILY BEGINNINGS, INC., dba Lilac Street,
ALICIA ZENG,
Intervenors
______________________
2022-1566
______________________
Appeal from the United States International Trade
Commission in Investigation No. 337-TA-1226.
______________________
ON MOTION
______________________
Case: 22-1566 Document: 30 Page: 1 Filed: 06/01/2022

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LASHIFY , INC. v. ITC 2
Before L OURIE, T ARANTO, and HUGHES , Circuit Judges.
P ER CURIAM .
O R D E R
Appellee International Trade Commission moves to
dismiss Appeal No. 2022-1566 as premature. ECF No. 21.
Lashify, Inc. opposes dismissal and requests instead that
the appeal be held in abeyance. ECF No. 26.
Lashify filed a notice of appeal seeking review of the
Commission’s decision not to review certain non-infringe-
ment findings regarding U.S. Patent No. 10,721,984. ECF
No. 1-2 at 2. But even Lashify’s notice characterized the
Commission’s decision as not “final” for purposes of judicial
review under Tessera, Inc. v. ITC, 646 F.3d 1357, 1367–69
(Fed. Cir. 2011) (citing 19 U.S.C. § 1337(c)), based on the
Commission’s pending consideration of certain other issues
in the investigation. ECF No. 1-2 at 4. We agree with the
parties that, under the circumstances of this case, we lack
jurisdiction over Lashify’s appeal because there has been
no final determination. Having considered the parties’ ar-
guments, the court determines that dismissal (rather than
a stay) is appropriate in this case, see, e.g., A & J Mfg., LLC
v. ITC, 584 F. App’x 933 (Fed. Cir. 2014), but the court will
allow Lashify to reinstate its appeal if, within 60 days of
the entry of this order, it appeals from a final determina-
tion.
Accordingly,
I T I S O RDERED T HAT :
Case: 22-1566 Document: 30 Page: 2 Filed: 06/01/2022

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LASHIFY , INC. v. ITC 3
(1) The appeal is dismissed for lack of jurisdiction, sub-
ject, however, to reinstatement under the same docket
number without payment of any additional filing fee if,
within 60 days of the entry of this order, Lashify appeals
from the entry of a final determination. The mandate shall
issue simultaneously with this order.
(2) Each party shall bear its own costs.
June 1, 2022
Date
F OR THE COURT
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
ISSUED AS A MANDATE: June 1, 2022
Case: 22-1566 Document: 30 Page: 3 Filed: 06/01/2022

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