Case: 13-1149 Document: 19 Page: 1 Filed: 04/26/2013
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AEVOE CORP.,
Plaintiff-Appellee,
v.
AE TECH CO., LTD.,
Defendant-Appellant,
AND
S&F CORPORATION, (doing business as SF Planet
Company AND SF Planet Corporation), AND
GREATSHIELD, INC.,
Defendants.
______________________
2013-1149
______________________
Appeal from the United States District Court for the
District of Nevada in No. 12-CV-0053, Judge Gloria M.
Navarro.
______________________
ON MOTION
______________________
Case: 13-1149 Document: 19 Page: 2 Filed: 04/26/2013
2 AEVOE CORP. v. AE TECH CO., LTD.
Before RADER, Chief Judge, DYK and WALLACH, Circuit
Judges.
RADER, Chief Judge.
ORDER
The companies involved in this patent infringement
case in the United States District Court for the District of
Nevada are Aevoe Corp., the owner of U.S. Patent No.
8,044,942 (the ’942 patent); and the defendants, AE Tech,
S&F Corporation, and Greatshield, Inc. (collectively AE
Tech), which manufacture and sell the touch screen
protectors that allegedly infringe the ’942 patent. The
appeal, by AE Tech, is from an order of the district court
entered on November 27, 2012, awarding Aevoe lost
profits and attorney fees as sanctions for violating the
court’s preliminary injunction order. Aevoe now moves to
dismiss the appeal for lack of jurisdiction.
Soon after commencing this action, Aevoe moved for a
preliminary injunction to prohibit the sale of the defend-
ants’ touch screen protectors. That motion, which was
unopposed by the defendants, was granted by the district
court in January 2012. Shortly thereafter, AE Tech
informed Aevoe of their intention to sell a redesigned
screen protector product. Once Aevoe had purchased the
new product and concluded it still infringed the ’942
patent, Aevoe filed a motion to hold the defendants in
contempt for violating the preliminary injunction order.
On May 2, 2012, the district court granted that mo-
tion. An order amending the preliminary injunction to
include language prohibiting the sale of products that
infringed the ’942 patent or any “colorable imitation”
thereof was entered by the district court on the same day.
AE Tech appealed from that ruling, which is pending
before this court. Meanwhile, the district court ordered
AE Tech to pay Aevoe $1,140,701.83 in lost profits and
$60,941.75 in attorneys’ fees as sanctions for violating the
Case: 13-1149 Document: 19 Page: 3 Filed: 04/26/2013
AEVOE CORP. v. AE TECH CO., LTD. 3
court’s preliminary injunction. Arguing that this court
does not have jurisdiction over that ruling, Aevoe moves
to dismiss.
This court ordinarily has appellate jurisdiction over
only “final decisions” of the district courts. 28 U.S.C.
§ 1291. The Supreme Court has long stated “as a general
rule a district court’s decision is appealable under [§ 1291]
only when the decision ‘ends the litigation on the merits
and leaves nothing for the court to do but execute the
judgment.’” Gulfstream Aerospace Corp. v. Mayacamas
Corp., 485 U.S. 271, 275 (1988) (quoting Catlin v. United
States, 324 U.S. 229, 233 (1945)). A case in which all that
has been done is conduct pre-trial proceedings and award
sanctions for contempt for actions arising out of those
proceedings cannot be said to leave nothing for the dis-
trict court to do but execute judgment. See Fox v. Capital
Co., 299 U.S. 105, 108 (1936); Doyle v. London Guar. &
Accident Co., 204 U.S. 599, 603 (1907); see also Cunning-
ham v. Hamilton Cnty., 527 U.S. 198, 204 (1999).
AE Tech argues that this court should exercise pen-
dent jurisdiction over the district court’s ruling in light of
the fact that the court will soon address the amended
injunction order. We do not agree. The exercise of pen-
dent appellate jurisdiction is reserved only for extraordi-
nary circumstances where “that appeal is ‘inextricably
intertwined’ with another appeal over which [the court
already has jurisdiction] such that it is necessary to
review both ‘to ensure meaningful review.’” Entergris,
Inc. v. Pall Corp., 490 F.3d 1340, 1348 (Fed. Cir. 2007)
(citing Clinton v. Jones, 520 U.S. 681, 707 n.41 (1997);
Swint v. Chambers County Comm’n, 514 U.S. 35, 51
(1995).
This court has thus applied the doctrine of pendent
jurisdiction only sparingly when the appealable order
required reviewing the otherwise unreviewable decision.
For example, we exercised pendent jurisdiction to review
Case: 13-1149 Document: 19 Page: 4 Filed: 04/26/2013
4 AEVOE CORP. v. AE TECH CO., LTD.
a district court’s grant of summary judgment of invalidity
on the ground that the order denying a preliminary
injunction properly on appeal was premised on the sum-
mary judgment ruling. See Helifax, Ltd. v. Blok-Lok, Ltd.,
208 F.3d 1339, 1345 (Fed. Cir. 2000).
Here, there is no indication that considering the is-
sues in the sanctions appeal would impact or resolve the
issues regarding the injunction ruling. This court has
declined to exercise pendent jurisdiction under similar
circumstances, see Entergris, 490 F.3d at 1349, and we see
no reason why that narrow doctrine should be applied in
this case. This court therefore grants the motion to
dismiss.
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted.
(2) Each side shall bear its own costs.
FOR THE COURT
/s/ Jan Horbaly
Jan Horbaly
Clerk
s25
ISSUED AS A MANDATE: April 26, 2013