Furminator, Inc. (formerly Known As Fm Acquisition Corp.) v. Kim Laube & Co., Inc.

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

FURMINATOR, INC. (FORMERLY KNOWN AS FM
ACQUISITION CORP.),
Plaintiff-Appellee,

V.
KIM LAUBE & CO., INC.,
Defendant-Appellant.

2011-1197

Appeal from the United States District Court for the
Eastern District of Missouri in case no. 08-CV-0367,
Judge E. Richard Webber.

## ON MOTION

Before PROST, MAYER, and MOORE, Circuit Judges.
MOORE, Circuit Judge.

ORDER

Kim Laube & Co., Inc. submits a motion, which we
treat as a petition for a writ of mandamus within the
context of this appeal, to stay a trial on damages in the

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United States District Court for the Eastern District of
Missouri pending disposition of this appeal.

Kim Laube & Co., Inc. filed this appeal seeking re-
view of the district court's summary judgment of in-
fringement against it and the sanctions imposed on Kim
Laube & Co., Inc. striking testimony and evidence. After
entering an order disposing of infringement, validity, and
other issues, the district court entered a subsequent order
to schedule a hearing on damages and injunctive relief.
The district court denied Kim Laube & Co., Inc.'s motion
to stay the hearing pending appeal.

In its motion to this court, Kim Laube & Co., Inc. asks
us to vacate the district court's order setting a hearing on
damages, arguing that its notice of appeal divested the
district court of jurisdiction. We note that 28 U.S.C.
§ 1292(c)(2) gives this court jurisdiction to consider inter-
locutory appeals from judgments in civil actions for patent
infringement "which would otherwise be appealable" and
are "final except for an accounting." But § 1292(c)(2) does
not divest the district court of jurisdiction to proceed with
a damages trial. As we explained in In re Calmar, 854
F.2d 461, 464 (Fed. Cir. 1988):

Hence it is clear that the purpose of the legisla-
tion, § 1292(c)(2), allowing interlocutory appeals
in patent cases was to permit a stay of a damages
trial. Thus there is no conflict between
§ 1292(c)(2) and [Fed. R. Civ. P.] 62(a)'s grant of
the discretion to stay or to proceed with the dam-
ages trial during the appeal. Indeed, in recogni-
tion of the district court's discretion, this court has
repeatedly denied, in unpublished opinions, mo-
tions to stay damages trials during appeals in
patent cases. [Emphasis in original.]

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Here, we do not find an abuse of discretion by the dis-
trict court in the circumstances of this case.

Accordingly,

IT IS ORDERED THAT:

The petition for a writ of mandamus is denied.

FOR THE COURT

MAR 0 4 2011

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Alan H. Norman, Esq.
Kent A. Rowald, Esq.
s23

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
MAR 04 2011

JAN HORBALY
CLERK