Creative Compounds, LLC v. Starmark Laboratories

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# United States Court of Appeals for the Federal Circuit

2009-1595

CREATIVE COMPOUNDS, LLC,

Plaintiff-Appellant,
V.
STARMARK LABORATORIES,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida in case
no. 07-CV-22814, Judge Alan S. Gold.

ON MOTION

Before MICHEL, Chief Judge, SCHALL and LINN, Circuit Judges.

SCHALL, Circuit Judge.

## ORDER

Starmark Laboratories moves to dismiss Creative Compounds, LLC's appeal of
the September 17, 2009, order of the United States District Court for the Southern
District of Florida. Creative Compounds opposes.

Creative Compounds filed a complaint seeking a declaration that it did not
infringe Starmark's patent and that the patent was invalid. Starmark filed counterclaims
asserting that Creative Compounds infringed Starmark's patent and that a second
patent, owned by Creative Compounds, was invalid. In its September 17 order, the
district court stated that Starmark's patent was valid and infringed by Creative
Compounds and that Creative Compounds' patent was invalid. The district court
ordered that the case be closed.

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Starmark moved to vacate the portion of the district court's order closing the case
so that it could seek injunctive relief and a trial on the issues of damages and
willfulness. The district court granted Starmark's motion, vacated its ruling that the case
be closed, and reopened the case.

There is no final judgment in this case. Because there is a pending claim for
injunctive relief, the case is not final except for an accounting. Thus, we must dismiss
this appeal. Creative Compounds may if appropriate file a notice of appeal after the
district court rules on the request for injunctive relief or enters final judgment.

Accordingly,

IT IS ORDERED THAT:

(1)
The motion to dismiss is granted.

(2)
Each side shall bear its own costs.

FOR THE COURT

DEC 3 0 2009

/s/ Jan Horbaly

Date

Jan Horbaly
Clerk

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT

cc:
Matthew A. Rosenberg, Esq.
Frederick A. Tecce, Esq.

s20

DEC 3 0 2009

ISSUED AS A MANDATE:

DEC 3 0 2009

JAN HURBALY
CLERK

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