One of the guiding principles of appellate jurisdiction is
the “final judgment rule” that defers jurisdiction of an appellate court “until
there has been a decision by the district court that ends the litigation on the
merits and leaves nothing for the court to do but execute the judgment.” Firestone Tire & Rubber Co. v. Risjord,
449 U.S. 368, 373 (1981). Much to the
chagrin of many a patent litigator and litigant, it is this principle that precludes
most interlocutory appeals (such as review of claim construction orders), no
matter how important the issue may be. There
is, however, an exception to the final judgment rule with respect to the Federal
Circuit’s jurisdiction hidden away in 28 U.S.C. 1292(c)(2), that permits
interlocutory appeals when a judgment is final “except for an accounting.” The
en banc Federal Circuit in Robert Bosch, LLC v. Pylon Manufacturing Corp., 2011-1363, 1364, June 14, 2013, took
on the question (sua sponte) whether an “accounting” as used in Section
1292(c)(2) includes (1) a trial on damages; and (2) a trial on the issue of
willfulness. A divided court (yet again)
held that, yes, the Federal Circuit does have jurisdiction over a case that is
final on all issues other than damages and willfulness.
The en
banc decision comes complete with the majority opinion, two opinions concurring-in-part and
dissenting-in-part and a fourth opinion by O’Malley dissenting. It would be both fun and worthwhile to dive
into the details of the four opinions and analyze the continued fractures in
the court on this issue (and in general), but other than law school professors,
who has the time! Suffice it to say
that unless and until the Supreme Court chimes in on this issue, district court
judges now know that should they decide to bifurcate issues of damages and
willfulness (as is Judge Robinson’s practice in D. Del.), that decision will not impair the ability of
the parties to appeal a judgment on the liability issues.
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