NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-1104
ARMAMENT SYSTEMS AND PROCEDURES, INC.,
Plaintiff-Appellant,
v.
IQ HONG KONG LIMITED, ZEN DESIGN GROUP LIMITED, and SUN YU,
Defendants-Appellees,
and
EMISSIVE ENERGY CORP., VECTOR PRODUCTS, INC. (doing business as Vector
Manufacturing Ltd.), GENERAL PARTS, INC. (doing business as Carquest Auto Parts
of West Allis Wisconsin), CARQUEST MANAGEMENT SERVICES, INC.,
MILLS FLEET FARM, INC., NORTHLAND FISHING TACKLE, INC.,
TARGET CORPORATION, and TEAM PRODUCTS INTERNATIONAL, INC.,
Defendants-Appellees,
and
JSA, INC. (doing business as Excell Marketing LLC),
Defendant-Appellee,
and
HARRIET CARTER GIFTS INCORPORATED
and BANDWAGON INCORPORATED,
Defendants-Appellees,
and
C CRANE COMPANY, INC.,
Defendant-Appellee.
Appeal from the United States District Court for the Eastern District of
Wisconsin in case no. 00-CV-1257, Judge William C. Griesbach.
ON MOTION
Before PROST, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and MOORE, Circuit
Judge.
PROST, Circuit Judge.
ORDER
IQ Hong Kong Limited et al. (IQHK) and Emissive Energy Corp. et al. (Emissive)
move to dismiss Armament Systems and Procedures, Inc.’s (ASP) appeal of the July
24, 2007 and October 12, 2007 orders of the United States District Court for the District
of Connecticut in Armament Sys. and Procedures, Inc. v. IQ Hong Kong Ltd., No. 00-
CV-1257. ASP opposes. IQHK and Emissive reply.
In the district court, ASP filed four actions. Armament Sys. and Procedures, Inc.
v. IQ Hong Kong Ltd., No. 00-CV-1257, Armament Sys. and Procedures, Inc. v.
Emissive Energy Corp., No. 01-CV-179, Armament Sys. and Procedures, Inc. v. Vector
Prods., Inc., No. 01-CV-1122, and Armament Sys. and Procedures, Inc. v. Target Corp.,
No. 03-CV-937. The district court consolidated these cases for purposes of claim
construction and challenges to validity. After conducting a bench trial, the district court
issued a memorandum decision and order stating that ASP’s patent is unenforceable.
The district court also dismissed ASP’s infringement claims. Subsequently, ASP and
IQHK filed a stipulation of dismissal with respect to ASP’s trademark claims. On
October 5, 2007, Emissive filed a motion to amend or correct its counterclaims seeking
to dismiss its unfair competition counterclaims. The district court took note of this
2008-1104 2
submission in its October 12, 2007 order denying ASP’s motion for a new trial, but has
not entered an order explicitly dismissing those counterclaims.
IQHK and Emissive state that these cases involved claims by ASP of patent
infringement, trade dress infringement, trademark infringement, trademark dilution,
unfair competition against the various defendants. IQHK and Emissive state that in 00-
1257, IQHK filed counterclaims seeking declarations that the patent is invalid and/or not
infringed and unenforceable. In 01-179, Emissive filed counterclaims seeking
declarations that the patent is invalid and unenforceable, and sought damages for unfair
competition. In 01-1122, Vector Products, Inc. asserted counterclaims seeking
declarations that the patent is invalid, unenforceable, and not infringed.
IQHK and Emissive contend that there are pending claims and counterclaims
before the district court and thus the appeal is premature. ASP concedes that it filed its
notice of appeal before all claims and counterclaims were adjudicated; however, ASP
states that the trademark claims and unfair competition counterclaims have since “been
disposed of as a practical matter.” ASP requests that this court remand to the district
court for entry of final judgment pursuant to Fed. R. Civ. P. 58.
Even if ASP is correct that the district court has disposed of the trademark claims
and Emissive’s unfair competition counterclaims, which we do not decide, there are still
several claims and counterclaims pending before the district court. The district court
has not entered judgment with respect to the invalidity counterclaims filed by IQHK,
Emissive and Vector and the noninfringement counterclaims filed by IQHK and Vector.
In addition, ASP’s trade dress and unfair competition claims are still pending before the
district court. Because there are pending claims and counterclaims, there is no final
2008-1104 3
judgment and this appeal is premature. See Pause Technology, LLC v. Tivo Inc., 401
F.3d 1290, 1294 (Fed. Cir. 2005) (stating that “a pending counterclaim precludes
jurisdiction absent certification under Rule 54(b)”); Nystrom v. Trex Co., 339 F.3d 1347,
1350 (Fed. Cir. 2003) (“If a case is not fully adjudicated as to all claims for all parties
and there is no express determination that there is no just reason for delay or express
direction for entry of judgment as to fewer than all of the parties or claims, there is no
final decision under 28 U.S.C. § 1295 (a)(1) and therefore no jurisdiction”). Thus, we
dismiss. ASP may, of course, file a notice of appeal after the district court disposes of
the pending claims and counterclaims and enters final judgment.
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted.
(2) Each side shall bear its own costs.
(3) The revised official caption is reflected above.
FOR THE COURT
March 7, 2008 /s/ Sharon Prost
Date Sharon Prost
Circuit Judge
cc: Steven E. Feldman, Esq.
Maurice E. Gauthier, Esq.
Mark R. Kramer, Esq.
Jonathan H. Margolies, Esq.
Mark A. Cantor, Esq.
John R. Petitjean, Esq.
s17
ISSUED AS A MANDATE: March 7, 2008
2008-1104 4