Avocent Redmond Corp. v. ROSE ELECTRONICS, PETER MACOUREK, and DARIOUSH RAHVAR (doing business as David Rahvar)

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-1564
AVOCENT REDMOND CORP.,
Plaintiff-Appellant,
v.
ROSE ELECTRONICS, PETER MACOUREK,
and DARIOUSH RAHVAR (doing business as David Rahvar),
Defendants-Appellees,
and
ATEN TECHNOLOGY, INC.
and ATEN INTERNATIONAL CO. LTD.,
Defendants-Appellees,
and
BELKIN CORP., BELKIN INTERNATIONAL, INC.,
and BELKIN, INC.,
Defendants-Appellees.
ON MOTION
Appeal from the United States District Court for the Western District of Washington in
case no. 06-CV-1711, Judge Marsha J. Pechman.
Before GAJARSA, LINN, and PROST, Circuit Judges.
PROST, Circuit Judge.
ORDER
Rose Electronics et al. (Rose) move to dismiss Avocent Redmond Corp.'s appeal
for lack of jurisdiction. Avocent opposes. Rose replies. Avocent moves for leave to file
a surreply, with surreply attached. Rose opposes. Avocent replies.

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Avocent sued Rose in the United States District Court for the Western District of
Washington, alleging patent infringement. Rose filed a request for ex parte
reexamination with the Patent and Trademark Office (PTO). On Rose's motion, the
district court stayed proceedings on October 30, 2007, pending the outcome of the
reexamination proceedings.
On June 19, 2008, Avocent moved the district court to lift the stay and also to
modify the court's protective order to permit Avocent to file certain sales information with
the PTO that had been submitted in the district court case under a protective order. On
August 18, 2008, the court denied Avocent's motions, treating Avocent's motion to lift
the stay as an untimely motion for reconsideration of the court's October 2007 order.
Avocent filed this notice of appeal, seeking review of the August 18, 2008 order.
In Gould v. Control Laser Corp., 705 F.2d 1340, 1341 (Fed. Cir. 1983), we held
that an order staying district court proceedings pending reexamination by the PTO was
not an immediately appealable order. In Slip Track Sys., Inc. v. Metal Lite, Inc., 159
F.3d 1337, 1340 (Fed. Cir. 1998), we held that under the facts of that case, a district
court order staying proceedings pending reexamination was appealable because it
effectively could put one of the appellants out of court. We noted that it was possible
that the appellants would be unable to raise the issue of priority of invention in the
district court or in this court on appeal from the PTO's decision. Unlike the situation
involving the appellant in Slip Track, Avocent has not shown that no court could decide
the patent issues, although perhaps the PTO would not decide the issues with all of the
evidence that Avocent wishes to submit. This showing does not make the order
appealable under our decision in Slip Track. Additionally, Avocent has not met its
burden of establishing that the portion of the order denying the motion to modify the
protective order is an immediately appealable order.
2008-1564 - 2 -

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Accordingly,
IT IS ORDERED THAT:
The motion to dismiss is granted. The appeal is dismissed.
The motion for leave to file a surreply is granted.
Each side shall bear its own costs.
FOR THE COURT
FEB 6 2009
/s/ Jan Horbaly
Date Jan Horbaly
Clerk
FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
cc: E. Robert Yoches, Esq.
James D. Berquist, Esq.
Ryan Ken Yagura, Esq.
Michael S. Dowler, Esq.
s19
FEB 6 2009
ISSUED AS A MANDATE:
FEB 0 6 2009
iAI rilifibbui
CLERK
2008-1564 - 3 -

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