NOTE: This order is nonprecedential.
mnlteb ~tate~ (!Court of ~peaI~
for tbe jfeberaI CIrcuit
APELDYN CORPORATION,
Plaintiff-Appellant,
v.
AU OPTRONICS CORPORATION AND
AU OPTRONICSCORPORATION AMERICA,
Defendants-Appellees,
AND
CHI MEl OPTOELECTRONICS CORPORATION
AND CHI MEl OPTOELECTRONICS USA INC.,
Defendants-Appellees,
AND
SAMSUNG ELECTRONICS CO., LTD. AND
SAMSUNG ELECTRONICS AMERICA, INC.,
Defendants.
2012-1172
Appeal from the United States District Court for the
District of Delaware in case no. 08-CV-0568, Judge Sue L.
Robinson.
APELDYN CORP v. AU OPTRONICS 2
ON MOTION
Before SCHALL, Circuit Judge.
ORDER
Eidos, LLC and Eidos IV, LLC (collectively "Eidos")
move for leave to intervene in the appeal. Apeldyn Cor-
poration opposes.
This appeal stems from a patent infringement action
brought by Apeldyn against AU Optronics and other
defendants. Apeldyn and Eidos entered into an agree-
ment in which Eidos financially supported Apeldyn's
patent infringement actions in exchange for an interest in
the proceeds from the actions and/or licensing efforts. In
April, Apeldyn filed a complaint against Eidos in the
United States District Court for the District of Oregon,
alleging that the agreement expired and was no longer in
force. That action remains pending in that district court.
Eidos now urges that it has an interest in the appeal
because Apeldyn no longer represents Eidos's interests.
Eidos argues that their agreement requires Apeldyn and
Eidos to agree on counsel, but Apeldyn is now represented
in the appeal by the counsel who is adverse to Eidos in
the Oregon action.
Eidos was not a party in the district court infringe-
ment action and made no effort to intervene. Under such
circumstances, "[a] court of appeals may, but only in an
exceptional case for imperative reasons, permit interven-
tion where none was sought in the district court."
McKenna v. Pan Am. Petroleum Corp., 303 F.2d 778,779
(5th Cir. 1962). Eidos presents no position relating to the
substance of the appeal in which its interest is adverse to
Apeldyn's. Its unsupported assertion that its interests
3 APELDYN CORP v. AU OPTRONICS
will not be adequately represented by the appellants do
not meet the burden to obtain permission to intervene on
the side of appellants in these circumstances. Moreover,
Eidos's concerns regarding the applicability of its agree-
ment with Apeldyn are before the Oregon district court.
Upon consideration thereof,
IT Is ORDERED THAT:
The motion is denied.
FOR THE COURT
NOV 022012 /s/ Jan Horbaly
Date Jan Horbaly
Clerk
cc: Scott G. Seidman, Esq.
Terrence Duane Garnett, Esq.
Donald R. McPhail, Esq.
Bernard J. DiMuro, Esq. COUftf~~EALS
u.s.THE FEDERAL CIRCUITFOR
s24
NOV 02 ~Ul~
JANHORBALY
ClERK