Syntex Pharmaceuticals Intern., Ltd. v. K-Line Pharmaceuticals, Ltd.
| Decision Date | 20 June 1990 |
| Docket Number | K-LINE |
| Citation | 15 USPQ2d 1239,905 F.2d 1525 |
| Parties | SYNTEX PHARMACEUTICALS INTERNATIONAL, LTD., Plaintiff-Appellee, v.PHARMACEUTICALS, LTD. and Drug Guild Distributors, Inc., Defendants-Appellants. T.J. ROACO, LTD., Plaintiff-Appellant, and Laura Blackman and Fred Klap, Counterclaim-Defendants-Appellants, v. SYNTEX PHARMACEUTICALS INTERNATIONAL, LTD., Defendant-Appellee. 89-1750, 90-1037. |
| Court | U.S. Court of Appeals — Federal Circuit |
Peter T. Cobrin, of Cobrin, Feingertz & Gittes, New York City, argued for plaintiff-appellant and counterclaim-defendants-appellants.
Michael A. Gollin, of Sive, Paget & Riesel, New York City, argued for defendants-appellants. With him on the brief was Lawrence R. Sandak.
James W. Gould, of Morgan & Finnegan, New York City, argued for plaintiff-appellee and defendant-appellee. With him on the brief were Stephen R. Smith, Arnold I. Rady, Joseph A. DeGirolamo, Michael N. Berg, and Karen L. Staff. Of counsel were Richard D. Catenacci, and Liza M. Walsh, of Connell, Foley & Geiser, Roseland, N.J.
Before MARKEY, Chief Judge, SKELTON, Senior Circuit Judge, and DUPLANTIER, District Judge. *
K-Line Pharmaceuticals, Ltd., Drug Guild Distributors, Inc., T.J. Roaco, Ltd., Laura Blackman, and Fred Klap (collectively K-Line) appeal from that part of an order of the United States District Court for the District of New Jersey, Civil Action Nos. 85-2814 and 85-2949 (September 18, 1989), 721 F.Supp. 653, in which the court granted summary judgment of infringement of Syntex Pharmaceuticals International, Ltd.'s (Syntex) United States Patent No. 3,592,930. K-Line Pharmaceuticals, Ltd. and Drug Guild Distributors, Inc. appeal from that part of the order in which the district court denied their motion for summary judgment of invalidity. We dismiss for lack of finality of the order.
It is unfortunate that the parties failed to note the nonfinality of the order, to move under Rule 59 or 60, Fed.R.Civ.P., for clarification, and to request a Rule 54(b), Fed.R.Civ.P., certification, 28 U.S.C. Sec. 1292(b). The parties might thereby have avoided a costly waste of the resources of this court.
Our jurisdiction over appeals from interlocutory orders of the present type is governed by 28 U.S.C. Sec. 1292. Thus, there must be either an order certified, 28 U.S.C. Sec. 1292(c)(1), or a judgment otherwise appealable and final except for an accounting, 28 U.S.C. Sec. 1292(c)(2). The order in this case constitutes a partial summary judgment and a denial of a motion for summary judgment, neither of which is appealable.
The grant of Syntex's motion resulted in a partial summary judgment of infringement. That judgment is not final and thus not appealable. See 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, Civil: Sec. 2715 (2d ed. 1983).
The denial of K-Line's motion for summary judgment of invalidity is also not a final judgment and therefore not appealable. See Senza-Gel Corp. v. Seiffhart, 803 F.2d 661, 669, 231 USPQ 363, 369 (Fed.Cir.1986).
The parties chose to assume that the district court sua sponte granted a summary judgment of validity. No such grant appears anywhere in the order. Disregarding this court's repeated reminders that one appeals from orders and judgments, not from opinions, the parties cite this from the district court's memorandum opinion:
The Court does not need to weigh evidence to conclude that, on this record, the evidence is so one-sided in favor of Syntex that K-Line and Drug Guild could not possibly convince a factfinder by clear and convincing evidence that the '930 patent is obvious over the prior art.... Hence there are no material issues of fact as to the validity of the '930 patent.
Accordingly, the Court will deny K-Line and Drug Guild's motion for...
To continue reading
Request your trial
-
Pause Technology LLC v. Tivo Inc.
...§ 1292(c). See also Pandrol USA, LP v. Airboss Ry. Prods., Inc., 320 F.3d 1354, 1362 (Fed.Cir.2003); Syntex Pharms. Int'l, Ltd. v. K-Line Pharms., Ltd., 905 F.2d 1525, 1526 (Fed.Cir.1990). On matters relating to this court's jurisdiction, we apply Federal Circuit law, not that of the region......
-
Nystrom v. Trex Co., Inc.
...U.S.C. § 1292(c). See Pandrol USA, LP v. Airboss Ry. Prods., Inc., 320 F.3d 1354, 1362 (Fed.Cir.2003); Syntex Pharm. Int'l, Ltd. v. K-Line Pharm., Ltd., 905 F.2d 1525, 1526 (Fed.Cir.1990). On matters relating to this court's jurisdiction, we apply Federal Circuit law, not that of the region......
-
Dahl v. Swift Distributions Inc. D/B/A Ultimate Support Sys. Inc.
...summary adjudication on infringement issues alone even though other issues remain in the case. See Syntex Pharm. Int'l, Ltd. v. K–Line Pharm., Ltd., 905 F.2d 1525, 1525–26 (Fed.Cir.1990). “[N]othing more is required [from an accused infringer] than the filing of a summary judgment motion st......
-
Pandrol Usa, v. Airboss Ry. Products, Inc.
...to all claims for all parties," there is no "final decision" and therefore no jurisdiction. Syntex Pharm. Int'l, Ltd. v. K-Line Pharm., Ltd., 905 F.2d 1525, 1526, 15 USPQ2d 1239, 1240 (Fed.Cir.1990). A judgment that does not dispose of pending counterclaims is not a final judgment. Id. The ......