Nartron Corporation v. Borg Indak, Inc.

NOTE: This order is nonprecedential.

# United States Court of Appeals for the Federal Circuit

NARTRON CORPORATION,
Plaintiff-Appellee,
V.
BORG INDAK, INC.,
Defendant-Appellant.

2012-1292

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Appeal from the United States District Court for the
Eastern District of Michigan in case no. 06-CV-10683,
Senior Judge Lawrence P. Zatkoff.

## ON MOTION

Before LOURIE, SCHALL and DYK, Circuit Judges.

LOURIE, Circuit Judge.

ORDER

Nartron Corporation moves to dismiss this appeal for
lack of jurisdiction. Borg Indak, Inc. opposes. Nartron
replies. Borg Indak seeks leave to file a surreply or
alternatively to strike Nartron's reply. Nartron opposes.

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Borg Indak seeks this court's review after the district
court issued its order concluding Nartron's asserted
patent was infringed, not invalid, and not unenforceable,
and rejecting Borg Indak's other counterclaims and af-
firmative defenses. But the district court noted that none
of the motions before it "addresse[d] damages or other
requested relief" and treated the motions as seeking
partial summary judgment. Nartron Corp. v. Borg Indak,
Inc., No. 06-10683 at 1-2, n.1 (E.D. Mich. Jan. 26, 2012).

Borg Indak contends that this court has authority to
review the order pursuant to 28 U.S.C. § 1292(c)(2), which
provides jurisdiction over appeals in patent cases that are
"final except for an accounting." Here, however, Nartron
sought an injunction in its complaint and the trial court
has not yet resolved the dispute over injunctive relief.
Because a claim for injunctive relief remains pending and
there appears to be a dispute as to whether there is
ongoing infringement, such that we cannot say that the
district court denied injunctive relief sub silentio, this
case is not final except for an accounting and we must
dismiss the appeal. See generally Stamicarbon, N.V. v.
Escambia Chem Corp., 430 F.2d 920, 931 (5th Cir. 1970).
Borg Indak may 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) Nartron's motion to dismiss is granted.

(2) Borg Indak's motion is granted to the extent that
the court accepts the surreply.

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## NARTRON CORPORATION V BORG INDAK, INC. FOR THE COURT

AUG 0 3 2012

/s/ Jan Horbaly

Date

Jan Horbaly

Clerk

cc: Frank A. Angileri, Esq.
Jeffrey A. Sadowski, Esq.
$23

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
AUG 03 2012
JAN HORBALY
CLERK

Issued as a Mandate:

AUG 0 3 2012