Koninklijke Philips Electronics N.v. v. Cardiac Science Operating Company

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-1040
KONINKLIJKE PHILIPS ELECTRONICS N.V.,
Plaintiff-Appellant,
v.
CARDIAC SCIENCE OPERATING COMPANY,
Defendant-Appellee.
Appeal from the United States District Court for the Western District of Washington in
case no. 08-CV-543, Judge Marsha J. Pechman.
ON MOTION
Before GAJARSA, LINN, and PROST, Circuit Judges.
PROST, Circuit Judge.
O R D E R
Koninklijke Philips Electronics N.V. (Philips) moves to stay proceedings in this
appeal pending district court action. Cardiac Science operating Company (Cardiac)
opposes. The court considers whether Philips’ appeal should be dismissed as
premature.
On September 23, 2008, the United States District Court for the Western District
of Washington issued an order dismissing Philips’ complaint. Although the court’s
October 9, 2008 judgment states that “there are no remaining issues for the Court to
resolve,” the district court never explicitly dismissed Cardiac pending counterclaim.
Because the district court has not yet entered an order dismissing Cardiac’s
counterclaim, we deem the better course is to dismiss the appeal as premature. See

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2009-1040 2
Nystrom v. Trex Co., 339 F.3d 1347, 1350 (Fed. Cir. 2003). After the district court has
adjudicated Cardiac’s counterclaim and entered final judgment, the parties may file any
timely appeals.
Accordingly,
IT IS ORDERED THAT:
(1) Philips’ motion is denied.
(2) The appeal is dismissed.
(3) Each side shall bear its own costs.
FOR THE COURT
____Feb. 6, 2009 _/s/ Jan Horbaly__________________
Date Jan Horbaly
Clerk
cc: Eric H. Chadwick, Esq.
Paul Thomas Meiklejohn, Esq.
J. Michael Jakes, Esq.
s20

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