Bailey v. Dart Container Corp. of Michigan

• Decision Date: 07 June 2002
• Docket Number: No. 02-1165.,No. 02-1166.,02-1165.,02-1166.
• Citation: 292 F.3d 1360
• Parties: John A. BAILEY, Plaintiff-Appellant, v. DART CONTAINER CORPORATION OF MICHIGAN, Dart Container Corporation of Kentucky, Dart Container Corporation of Pennsylvania, and Dart Container Corporation, Defendants-Appellees. John A. Bailey, Plaintiff-Appellee, v. Dart Container Corporation of Michigan, Dart Container Corporation of Kentucky, Dart Container Corporation of Pennsylvania, and Dart Container Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Federal Circuit

292 F.3d 1360

John A. BAILEY, Plaintiff-Appellant, v. DART CONTAINER CORPORATION OF MICHIGAN, Dart Container Corporation of Kentucky, Dart Container Corporation of Pennsylvania, and Dart Container Corporation, Defendants-Appellees.

John A. Bailey, Plaintiff-Appellee, v. Dart Container Corporation of Michigan, Dart Container Corporation of Kentucky, Dart Container Corporation of Pennsylvania, and Dart Container Corporation, Defendants-Appellees.

No. 02-1165.

No. 02-1166.

United States Court of Appeals, Federal Circuit.

DECIDED: June 7, 2002.

Erik P. Belt, Bromberg & Sunstein LLP, of Boston, MA, for plaintiff-appellant. Of counsel were Sarah C. Peck and Anne Marie Longobucco.

Scott L. Robertson, Hunton & Williams, of Washington, DC, for defendants-cross appellants. Of counsel were Thomas J. Scott, Jr., Ozzie A. Farres, and Emerson V. Briggs, III.

Before LOURIE, LINN and DYK, Circuit Judges.

ON MOTION

LINN, Circuit Judge.

ORDER

John A. Bailey moves to dismiss appeal 02-1166 filed by Dart Container Corporation of Michigan et al. Dart Container opposes. Bailey replies.

The United States District Court for the District of Massachusetts found noninfringement and Bailey appealed. Dart Container prevailed on the merits of the case, but states that it filed a "conditional" cross-appeal so that it could raise arguments regarding noninfringement and claim construction in the event that this court reverses the noninfringement determination. Dart Container cites IMS Technology, Inc. v. Haas Automation, Inc., 206 F.3d 1422, 1437-38, 54 USPQ2d 1129, 1140 (Fed.Cir.2000), and Budde v. Harley Davidson, Inc., 250 F.3d 1369, 58 USPQ2d 1801 (Fed.Cir.2001), as supporting the filing of such a conditional cross-appeal. Although those cases mention that such a conditional cross-appeal was filed and the court considered the cross-appellants' arguments concerning claim construction, those cases do not state that a prevailing party has standing to appeal or that a conditional cross-appeal must be filed in order for those issues to be considered. Absent such a discussion, those cases cannot stand for the proposition that there is jurisdiction over such a cross-appeal. See Nat'l Cable Television Assoc., Inc. v. Am. Cinema Editors, Inc., 937 F.2d 1572, 1581, 19 USPQ2d 1424, 1431 (Fed.Cir.1991) ("When an issue is not argued or is ignored in a decision, such decision is not precedent to be followed in a subsequent case in which the issue arises.").

As Bailey correctly notes, an appellee can present in this court all arguments supported by the record and advanced in the trial court in support of the judgment as an appellee, even if those particular arguments were rejected or ignored by the trial court. Datascope Corp. v. SMEC, Inc., 879 F.2d 820, 822 n. 1, 11 USPQ2d 1321, 1322 n. 1 (Fed.Cir.1989) (cross-appeal improper to offer arguments in support of the judgment; appellee can assert alternative grounds for affirming the judgment that are supported by the record); Glaxo, Inc. v. TorPharm, Inc., 153 F.3d 1366, 1371-72, 47 USPQ2d 1836, 1840 (Fed.Cir.1998) (court may adopt ground advanced by appellee that was rejected by the trial court on summary judgment). Thus, the arguments made by the cross-appellants in IMS and Budde could have been considered by this court even if the cross-appellants had merely proceeded as appellees, as long as those arguments were made in support of the judgment of noninfringement. Similarly, in this case, Dart Container can as an appellee make appropriate arguments regarding claim construction that would result in affirmance of the judgment of noninfringement. See United States v. Am. Ry. Express Co., 265 U.S. 425, 435, 44...