September 2013
Intellectual Property & Technology Law Journal
Authored by J. Preston (J.P.) Long, Ph.D. and Allen M. Sokal
As Part 11 of this article observed, appeals begin at trial, and they can be won or lost there. Whether making a strategic decision not to object to a piece of evidence or inadvertently failing to preserve an issue for appeal, countless decisions and oversights made during trial can make or break an appeal. Thus, a wise litigator cannot be single-minded; he or she must always appreciate the potential implications accompanying each choice made at trial. More fundamentally, the litigator must recognize each choice that needs to be made.
This article seeks to provide insight into what issues to look for at trial and how to address them. The first part of this article provided some basic, overarching principles, illustrating them with some fairly uncommon situations and procedures that can snare even the most attentive litigators, and highlighted a number of the most common procedural traps for unwary litigators. This conclusion of the article discusses other procedural traps, beginning with motions for relief from judgment and then motions for stay pending appeal and motions to reconsider.
Motions for relief from judgment are governed by Rule 60. They are intended as a mechanism by which the appellate courts can maintain "the delicate balance between the sanctity of final judgments . . . and the incessant command of a court's conscience that justice be done in light of all the facts."2 Put another way, "[Rule 60] is intended 'to prevent the judgment from becoming a vehicle of injustice.'"3 Thus, it "is to be construed liberally to do substantial justice."4 Like many other procedural matters, because denial of a Rule 60 motion generally is a procedural issue not unique to patent law, the Federal Circuit applies the law of the regional circuit in which the district court resides.5 However, if review of a movant's Rule 60 motion turns on substantive matters unique to patent law, Federal Circuit law applies.6 The decision of whether to grant a Rule 60 motion ultimately lies within the court's discretion and will therefore be reviewed on appeal for abuse of discretion.7
Rule 60(a) governs relief from a judgment based on clerical mistakes, oversights, or omissions by the trial court. It is designed "to permit the district court to reconsider and correct its own errors, particularly if they are of an obvious nature amounting to little more than clerical errors."8 Thus, Rule 60(a) motions are proper when a party discovers a glaring clerical or typographical error, especially when the judgment does not accurately reflect the decision as rendered.9 They may be filed at any time. Moreover, even if no party files a Rule 60(a) motion, the court may, sua sponte, "correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record."10 After an appeal has been docketed, however, such mistakes may be corrected only with the leave of the appellate court.11
Rule 60(b) governs relief from final judgment on "just terms."12 It gives a court "broad discretion regarding the type of relief it might grant."13 Accordingly, a Rule 60(b) motion is appropriate for any of the following reasons:
1. Mistake, inadvertence, surprise, or excusable neglect;
2. Newly discovered evidence that with reasonable diligence could not have been discovered in time to move for a new trial under Rule 59(b);
3. Fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
4. Judgment is void;
5. Judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
6. Any other reason that justifies relief.14
Rule 60(b) motions "must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year."15
The Rule 60(b)(1) provision for relief because of "excusable neglect" often arises in cases of default judgment. The courts clearly disfavor default judgment, preferring instead a trial on the merits of the case.16 Thus, Rule 60(b)(1) motions do not require a showing of "extraordinary circumstances."17 Rather, any time the Federal Circuit addresses the issue of "excusable neglect" under Rule 60(b)(1), it examines three factors: "(1) whether the non-defaulting party will be prejudiced; (2) whether the defaulting party has a meritorious defense; and (3) whether culpable conduct of the defaulting party led to the default."18 Not all factors must be present, however; it is a balancing test.19
Rule 60(b)(2) provides for relief from final judgment when newly discovered evidence could not have been discovered through reasonable diligence in time to file a Rule 59 motion. The "reasonable diligence" limitation "provid[es] finality to judicial decisions and orders by preventing belated attempts to reopen judgment on the basis of facts that the moving party could have discovered at the time of trial."20 Although the law varies between regional circuits, to prevail on a Rule 60(b)(2) motion a party generally must show the following or some slight variation thereof:
1. Evidence must be discovered following the trial;
2. Facts must be alleged from which the court may infer diligence on the part of the movant to discover the new evidence;
3. Evidence must not be merely cumulative or impeaching;
4. Evidence must be material; and
5. Evidence must be such that a new trial would probably produce a new result.21
Rule 60(b)(3) permits relief to a party when a court discovers fraud, misrepresentation, or misconduct by an opposing party. A successful Rule 60(b)(3) motion "requires rigorous proof . . . lest the finality established by Rule 60(b) be overwhelmed by continuing attacks on the judgment."22 In general, a court contemplating whether to grant a Rule 60(b)(3) motion will look for two basic elements: (1) whether an opponent committed fraud or engaged in some other form of misconduct and (2) whether the alleged misconduct prevented the movant from making a full and fair presentation of its case.23 To show that it was precluded from making a full and fair presentation of its case, a movant need not demonstrate that the trial court's prior decision would have been different.24 It suffices that the misconduct materially altered a party's approach to the trial.25
Although a movant typically must file a motion for relief under Rule 60(b)(3) within one year after judgment, a court may grant relief outside of that one-year period in cases of newly discovered misconduct if the movant files within a reasonable time.26 Such misconduct must have occurred during the litigation proceedings, and it must amount to "a material subversion of the legal process such as could not have been exposed within the one-year window."27 Misconduct falling within this exception generally is limited to "egregious events . . . affecting the integrity of the court and its ability to function impartially."28 It must be "directed to the judicial machinery itself" and "involve[] circumstances where the impartial functions of the court have been directly corrupted."29
Rule 60(b)(4) permits relief from void judgments. As the Federal Circuit has noted, "[I]t is well established that a judgment is void for purposes of 60(b)(4) only when the court that rendered the judgment lacked jurisdiction or failed to act in accordance with due process of law."30 A court may fail to act in accordance with due process of law, for example, if it improperly enters a default judgment.31 A judgment is not void merely because it is erroneous, or because it is based on precedent that has been altered or overruled.32 However, "if the underlying judgment is void, it is a per se abuse of discretion for a district court to deny a movant's motion to vacate the judgment under Rule 60(b)(4)."33
Rule 60(b)(5) provides for relief from judgment when a prospective application of the court's judgment is no longer equitable. Thus, to succeed on a Rule 60(b)(5) motion, the movant must show that "continued operation of the judgment will result in inequity."34 Such a motion should be considered "when the party seeking relief from an injunction or consent decree can show 'a significant change either in factual conditions or in law,'"35 e.g. when the law on which the trial court's decision was based is no longer good law. Whether the subsequent change in the law was statutory or decisional is irrelevant.36 Note that the America Invents Act (AIA) created a number of statutory changes in patent law. As courts interpret the AIA's provisions, a number of decisional changes to the law also are likely. Thus, opportunities for Rule 60(b)(5) relief may be more frequent as those new laws take shape. In addition, Rule 60(b)(5) relief may be appropriate when a parallel proceeding in the Patent and Trademark Office (PTO), such as ex parte reexamination, post-grant review, or inter partes review, results in amendments to or the cancellation or invalidation of a disputed claim.37
Rule 60(b) is not effective, however, as a way to revive arguments on remand that should have been made on appeal.38 For example, consider a case in which the district court finds a patent not invalid but not infringed under a relatively narrow claim construction. If the Federal Circuit reverses the district court's non-infringement ruling based on a broader claim construction, the district court's invalidity ruling may once again be at issue.39 A defendant waives the right to challenge the district court's validity ruling, however, unless the defendant files a contingent cross-appeal.40 In other words, Rule 60(b)(5) cannot be used to reopen the validity issue on remand.41 The cross-appeal rule states that a respondent seeking, on appeal, to lessen the rights of the appellant or to enlarge its own rights must instead file a cross-appeal.42 Although the Federal Circuit generally disapproves of improper contingent cross-appeals (sometimes even sanctioning parties who bring such challenges),43 failure to cross-appeal the district court's validity ruling under the circumstances described will result in waiver.
Rule 60(b)(6) is a catch-all provision. It gives federal courts broad authority to relieve a party from final judgment "'upon such terms as are just,' provided that the motion is made within a reasonable time and is not premised on one of the grounds for relief enumerated in clauses (b)(1) through (b)(5)."44 Thus, Rule 60(b)(6) cannot be used to circumvent the other provisions of Rule 60.45 In general, the party seeking relief under Rule 60(b)(6) must demonstrate "that circumstances surrounding the judgment created a substantial danger of an unjust result."46 Indeed, the circumstances must be "extraordinary."47
Rule 54(b) is relevant when a trial court's judgment involves multiple claims or multiple parties. It was adopted to "relax[] the restrictions upon what should be treated as a judicial unit for the purposes of appellate jurisdiction."48 In practice, Rule 54(b) allows a district court to make an individual claim final and to sever it from the rest of the claims for purposes of appeal.49 It acknowledges that "some final decisions, on less than all of the claims, should be appealable without waiting for a final decision on all of the claims."50 In general, a judgment that does not dispose of all claims relating to all parties is considered interlocutory and is not appealable. If such a judgment is made final under Rule 54(b), however, it is appealable. Thus, Rule 54(b) motions should be considered when a judgment becomes final, and "additional claims, counterclaims, or third-party claims are left unadjudicated."51
"The function of the district court under [Rule 54(b)] is to act as a 'dispatcher.'"52 A court judging whether Rule 54(b) applies must focus not only on the finality of the judgment, but also on the separateness of the claims for relief.53 Moreover, a trial court will grant a Rule 54(b) motion only when it "expressly determines that there is no just reason for delay" before appeal.54 While the presence or absence of just reason for delay is a question left to the trial court's discretion, the question of whether the decision is final is not.55 Rather, finality is "a statutory mandate."56 A judgment is final for Rule 54(b) purposes when it is "an ultimate disposition of an individual claim entered in the course of a multiple claims action."57
Some interlocutory appeals may be filed because of their very nature. For example, any order granting or refusing to grant injunctive relief is immediately appealable as a matter of right.58 Most actions do not fall into that category, however. Patent claim constructions, for example, do not dispose of a complete legal claim in a case and therefore generally are not candidates for interlocutory appeal.59 When a ruling of the latter sort eliminates all rational prospects for success on the merits, the adversely affected party may consider requesting entry of a final judgment against it on the associated claims. It can then file a Rule 54(b) motion and immediately seek an appeal.
The Federal Circuit recently issued an important ruling on mandatory interlocutory appeals likely to advance appeals in bifurcated trials. In Robert Bosch, LLC v. Pylon Manufacturing Corp.,60 the court considered, en banc, the meaning of 28 U.S.C. §1292(c)(2). That provision states that the Federal Circuit has exclusive jurisdiction "of an appeal from judgment in a civil action for patent infringement which would otherwise be appealable to the [Federal Circuit] and is final except for an accounting."61 The court ruled that although "accounting" in patent cases once included only an equitable accounting of the infringer's profits, a trial on damages and a determination of willfulness each qualify as "an accounting" within the meaning of §1292(c) (2).62 It remains to be seen what impact this decision will have on the district courts. Although the trial court decides in its discretion whether to bifurcate a patent infringement suit,63 the Bosch decision provides excellent ammunition to parties seeking bifurcation. Given the relatively high rate of Federal Circuit reversals on liability and the costs of holding damages trials (in terms of both time and money), the Bosch decision will likely have a significant impact.
As an alternative to mandatory interlocutory appeals, 28 U.S.C. §1292(b) gives courts the power to grant permissive interlocutory appeals of decisions not appealable as a matter of right. Those often are referred to as "certified questions." Unlike Rule 54(b) motions, certified questions involve decisions that do not render a claim final. Courts rarely grant interlocutory appeals under Section 1292(b) because the provision was intended for use only in "exceptional cases where a decision on appeal would avoid protracted and expensive litigation."64 To be eligible for a permissive interlocutory appeal, the district court must certify its order pursuant to Section 1292(b). A party generally requests certification by filing a motion, arguing that the three basic requirements for certification are present in the court's order. First, the decision must "involve[] a controlling question of law."65 Moreover, there must exist "substantial ground for difference of opinion."66 Finally, the judge must believe that "an immediate appeal from the order may materially advance the ultimate termination of the litigation."67
In deciding whether to certify an order, the trial judge will "carefully consider[] the competing equities" and decide whether "the need for an immediate appeal . . . clearly outweigh[s] . . . the policy against piecemeal adjudication."68 Although there may be instances in which an appellate court is justified in ordering a district court to certify a question, the Federal Circuit generally will not interfere with the district court's decision.69 If the district court judge certifies the order, the adversely affected party has 10 days to seek an interlocutory appeal in the Federal Circuit. The Federal Circuit may then choose, at its own discretion, whether to entertain the appeal. Note, however, that seeking an interlocutory appeal under Section 1292(b) will not stay proceedings in the district court unless the district court judge or a Federal Circuit judge specifically grants a stay.70
Even if the district court certifies an appeal under Section 1292(b), the Federal Circuit rarely takes such interlocutory appeals.71 Permissive interlocutory appeals would clearly have value when a party wishes to challenge a district court judge's claim construction before trying the ultimate question of infringement; however, the Federal Circuit refuses to grant interlocutory appeals of that type.72 That remains true even when the district court adopts a claim construction not proffered by either party.
As noted earlier, interlocutory appeals of injunctive orders are available as a matter of right.73 Section 283 of the Patent Act gives district courts the power to grant injunctive relief for patent infringement. Specifically, a district court "may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable."74 As the terms of the statute make clear, "the district court's grant or denial of an injunction is within its discretion depending on the facts of each case."75 When deciding whether to issue a preliminary injunction, a court must consider the traditional principles of equity by evaluating: “(1) the likelihood of the patentee's success on the merits; (2) irreparable harm if the injunction is not granted; (3) the balance of hardships between the parties; and (4) the public interest.76 Note, however, that a court should not issue a preliminary injunction if there is "a substantial question concerning infringement or validity, meaning that [the adversely affected party] asserts a defense that [the party seeking the injunction] cannot prove lacks substantial merit."77 The four preliminary injunction factors are not dispositive as examined individually. Rather, "the district court must weigh and measure each factor against the other factors and against the form and magnitude of the relief requested."78 Yet, logically, both of the first two factors—(1) likelihood of success and (2) irreparable harm—must be present.79
To show a likelihood of success on the merits, a plaintiff must show that, given the presumptions and burdens that will govern a trial on the merits, (1) it likely will prove that the defendant infringed its patent, and (2) the patent likely will survive any invalidity and unenforceability challenges.80 Those two questions are judged on a claim-by-claim basis.81
In the past, the Federal Circuit applied a presumption that "[a] strong showing of likelihood of success on the merits coupled with continuing infringement raises a presumption of irreparable harm to the patentee."82
Although the continuing viability of this presumption remained an open question for some time following eBay,83 it is no longer valid. The Federal Circuit recently declared unequivocally that "eBay jettisoned the presumption of irreparable harm as it applies to determining the appropriateness of injunctive relief."84 Thus, irreparable harm now requires independent proof. Courts have recognized a number of factors that may influence that determination,85 but they are currently far from united in their application. Moreover, the Federal Circuit has announced that irreparable harm "require[s] a nexus between infringement of the patent and some market-based injury, be it as a result of consumer preference or some other kind of causal link."86 In a related appeal, the court elaborated that "[i]t is not enough for the patentee to establish some insubstantial connection between the alleged harm and the infringement . . . The patentee must rather show that the infringing feature drives consumer demand for the accused product."87 The role of this new "causal nexus" requirement is not yet entirely clear.88
Under the third factor, the balance of hardships, a district court also must weigh the harm that the moving party will suffer from the denial of a preliminary injunction against the harm that the nonmoving party will suffer if an injunction is granted.89 Lastly, the public interest factor refers not only to the public's interest in protecting valid patent rights, but also to "whether there exists some critical public interest that would be injured by the grant of preliminary relief."90 The significance of all relevant public interests must then be balanced.91
The Federal Circuit reviews the district court's decision to grant or deny an injunction under an abuse of discretion standard.92 Under that standard, the Federal Circuit will set aside a district court's order to grant or deny injunctive relief only if the district court "abused its discretion, committed an error of law, or seriously misjudged the evidence."93 To the extent the district court's decision depends on an issue of law, however, the Federal Circuit will review that issue de novo.94 Moreover, "[a]lthough the standard of review for the issuance and scope of an injunction is abuse of discretion, whether the terms of the injunction fulfill the mandates of [Rule] 65(d) is a question of law that [the Federal Circuit] reviews de novo."95
Rule 65(d) governs the contents and scope of injunction orders. It requires specificity: "Every order granting an injunction . . . must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required."96 A terse injunction order will not suffice. For example, the Supreme Court has condemned broad injunctions that simply instruct the enjoined party not to violate a statute.97 "Such injunctions increase the likelihood of unwarranted contempt proceedings for acts unlike or unrelated to those originally judged unlawful."98 In the context of patent infringement, the Federal Circuit will reject injunctions that simply prohibit future infringement of a patent.99 To satisfy Rule 65(d), an order must "use specific terms or describe in reasonable detail the acts sought to be restrained."100 Accordingly, an injunction for patent infringement should note which acts constitute infringement. Alternatively, a court may expressly limit the injunction to the manufacture, use, or sale of the specific device found to infringe, or devices no more than colorably different from the infringing device.101
The collateral order doctrine is a rarely used mechanism, but it can be very effective when appropriate. It permits an appellate court to review a trial court's decision that (1) conclusively determines an important and disputed question; (2) is completely separate from the merits of the action; and (3) would be effectively unreviewable on appeal from a final judgment.102 To appeal under the collateral order doctrine, an appellant also must identify what right will be lost if the decision is not reviewed immediately.103 For example, the Federal Circuit has used the collateral order doctrine to review a motion to quash a subpoena granted in an ancillary proceeding by a court other than the one in which the litigation was pending.104 On the other hand, "routine discretionary decision[s] of the district court concerning trial management" are not reviewable under the collateral order doctrine.105 Indeed, the Supreme Court expressly limited the scope of reviewability to a "small class" of cases.106 Otherwise, "a flood of piecemeal appeals would undoubtedly ensue."107 Falling squarely outside of the collateral order doctrine, therefore, are almost all orders issued by the district courts, including orders involving trial bifurcation, run-of-the-mill discovery disputes, and most stay orders.
Rule 62 governs stays of execution. When a party appeals, "a judgment or order that directs an accounting in an action for patent infringement" cannot be stayed after entry unless the court orders otherwise.108 The same restriction also applies to "an interlocutory or final judgment in an action for an injunction or a receivership."109 Thus, a stay of execution pending appeal is not automatic in a patent infringement case. Nonetheless, one should consider moving for a stay of execution when the order or judgment to be appealed includes a preliminary or permanent injunction, or an assessment of monetary relief. It is important to note that whether the trial court orders injunctive or monetary relief makes a difference. Rule 62(d) generally permits the stay of an order requiring the payment of money by posting a supersedeas bond; the stay of an injunctive order is much more difficult to obtain, however.
Rule 62(c) addresses injunctions pending appeal. They are judged according to a four-part test. A reviewing court will weigh: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies."110 Each factor does not necessarily receive equal weight, however, and likelihood of success on the merits is a flexible concept.111 As the Supreme Court put it, "[T]he traditional stay factors contemplate individualized judgments in each case[;] the formula cannot be reduced to a set of rigid rules."112 For example, a court will not require a particularly strong showing that the applicant likely will succeed on the merits if the harm to the applicant is great enough.113 Indeed, the essential nature of the test is just to "assess [the] movant's chances for success on appeal," balancing "the equities as they affect the parties and the public."114 Although surely more apt to find a likelihood of success on the merits than a trial court having just issued the injunction, the Federal Circuit does not frequently grant stays that have been denied by the trial court. The movant bears the "heavy burden" of demonstrating that the trial court "abused its discretion, committed an error of law, or seriously misjudged the evidence."115 And as far as trial courts are concerned, "[o]nce a plaintiff has met its burden in showing that an injunction is necessary, no delay in the issuance of that injunction is appropriate absent extraordinary circumstances."116
Under Rule 62(b), a district court also may stay the execution of a judgment pending the disposition of other post-judgment motions—in particular, those filed pursuant to Rules 50, 52(b), 59, and 60.117 Rule 62(b) motions can be very important. Consider a party that, while awaiting decision on its other post-judgment motions, continues to engage in activities that violate the trial court's judgment. Unless that party files a Rule 62(b) motion as well, it may be held in contempt for failure to comply with the trial court's judgment.118 Also note that a Rule 62(b) motion becomes moot once the court rules on the associated post-judgment motions.119
The appellate courts have powers similar to the district court regarding stays of execution. Rule 62(g) preserves the appellate courts' authority "to stay proceedings—or suspend, modify, restore, or grant an injunction—while an appeal is pending" or "to issue an order to preserve the status quo or the effectiveness of the judgment to be entered."120 Note, however, that a party must ordinarily move for such relief first in the district court.121
Asking the appellate court to afford such relief is only appropriate when "moving first in the district court would be impracticable" or "the district court denied the motion or failed to afford the relief requested and state any reasons given by the district court for its action."122
Rule 4(a) of the Federal Rules of Appellate Procedure sets forth the timing requirements for filing an appeal in the Federal Circuit. In general, a party must file a notice of appeal with the district clerk within 30 days after entry of the judgment or order to be appealed.123 If the United States is a party to the action, that time is extended to 60 days.124 Note also that when a party has filed post-judgment motions under Rule 50(b), Rule 52(b), Rule 59, or Rule 60, the critical period for filing the notice of appeal does not begin upon entry of the judgment or order to be appealed. Rather, it begins from the date of the order disposing of the last such remaining motion.125 Similarly, if a party files a notice of appeal while the disposition of a Rule 50(b), Rule 52(b), Rule 59, or Rule 60 post-judgment motion is pending, the notice of appeal becomes effective upon the disposition of the last such motion.126 Cross-appeals may be filed within 14 days of the date that the first notice of appeal was filed, or within any of the aforementioned time periods, whichever ends later.127
An appealing party generally may file for an extension if two conditions are satisfied.128 First, the party must file its motion for extension no more than 30 days after the normal period for filing an appeal have expired. Second, the party must be able to demonstrate excusable neglect or good cause. In limited circumstances, however, the district court may reopen the time to file an appeal.129
The Federal Circuit Rules require that the district court clerk convey to the Federal Circuit the notice of appeal, the docket entries, an appeal information sheet, and a copy of any opinion accompanying the judgment or order being appealed.130 Because many district court clerks are in the habit of forwarding notices of appeal to their geographic circuit court, notices of appeal to the Federal Circuit often are misdirected. That can lead to delays in processing appeals. Practitioners should follow up with the Federal Circuit clerk's office to make sure that the notice of appeal was properly forwarded to the correct court. Once received at the Federal Circuit, the court will "docket" the appeal—meaning that it assigns the case a docket number, makes a docket card available to the public, and records the names of the parties in the court's publicly available party index. The clerk is required to notify all parties of the date on which the appeal was docketed.131
The party successful in the district court may want to consider filing a cross-appeal. As a practical matter, however, this may be risky. After all, arguing that the district court was correct in its resolution of issues in favor of a client, yet wrong in its resolution of issues less favorable to the client, can be an inherently uncomfortable prospect. On the other hand, it may be important at least to preserve the option of cross-appealing. For example, the threat of a cross-appeal may encourage the other party to settle if it prefers not to revisit a particular issue, or the issue to be cross-appealed may simply be an important one. Fortunately, a party does not actually need to decide whether to cross-appeal when it files its notice of cross-appeal. Instead, a party can file the notice then defer judgment regarding whether to raise the issue until the time at which the appellee's brief is due. If it chooses to argue the issue, the party can include it in its brief; if not, the party can simply leave it out. If an appellee only wishes to present alternative theories for relief to the appellate court, a cross-appeal is unnecessary as long as those issues were raised in the district court. In fact, filing a cross-appeal to raise arguments in support of the trial court's decision may be "worse than unnecessary."132 As the Federal Circuit has noted, "[a] cross-appeal is only proper if 'a party seeks to enlarge its own rights under the judgment or to lessen the rights of its adversary under the judgment.'"133
Rule 3(c)(1) of the Federal Rules of Appellate Practice specifies the content required for a proper notice of appeal. Form 1 in the Appendix of Forms accompanying the Federal Rules of Appellate Practice is a suggested form of a proper notice of appeal.134 A proper notice of appeal must "(A) specify the party or parties taking the appeal . . . ; (B) designate the judgment, order, or part thereof being appealed; and (C) name the court to which the appeal is taken."135 Note that the Federal Circuit will not dismiss an appeal for informality or for failure to name a party whose intent to appeal is otherwise clear from the notice.136 Rather, "the proper focus is on the record as a whole."137 Yet, although the rule will be interpreted liberally, the filing party cannot expand the scope of a notice of appeal that was specifically limited.138
Upon filing a notice of appeal, an appellant must pay the district court clerk all required fees, including the appellate docketing fee.139 However, appealing parties must pay docketing fees to the Federal Circuit's clerk upon filing for any other proceeding, including an appeal or petition for review from the PTO, and including extraordinary writs.140 Federal Circuit Rule 52 prescribes the relevant fee schedule, which nearly equates with the Court of Appeals Miscellaneous Fee Schedule, issued in accordance with 28 U.S.C. §1913. The Federal Circuit charges a $450 docketing fee whenever it adds an appeal or any other proceeding to its docket.141
Each party filing a notice of appeal must pay a separate docketing fee, except that parties filing a joint notice of appeal need only pay one fee. Note that when a party applies for a permissive interlocutory appeal under 28 U.S.C. §1292(b), the court only charges a docketing fee if it certifies the appeal. In addition to the docketing fee, any party that files a separate or joint notice of appeal also must pay $5 to the district court upon filing.142
The clerk does not have to docket any proceeding or perform any other service until the party pays all fees owed, unless a party has been granted leave to proceed in forma pauperis.143 If a proceeding is docketed without prepayment of the docketing fee, the filing party must pay it within 14 days of docketing. Otherwise, the clerk is authorized to dismiss the appeal for failure to prosecute, and all pending motions will be rendered moot. Thus, a practitioner must make sure to pay the docketing fee on time. When appropriate, however, the Federal Circuit will grant an extension of time to pay the docketing fee.
As the foregoing makes clear, appeals and district court cases are not independent. Although perhaps conceptually distinct in many ways, the two are closely coupled, each capable of affecting the other in significant ways. To be truly effective, a trial court litigator must therefore recognize how appellate and district court proceedings can shape one another and then make informed choices accordingly. Counsel should raise and preserve important issues for appeal, develop an optimal record at trial, and be mindful of all of the procedures and issues discussed in this article. A trial court litigator must appreciate the broader landscape his or her case inhabits to be a truly effective advocate for his or her client.
1 Part 1 appeared in the August issue of the Intellectual Property and Technology Law Journal.
2 Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980) (quoting Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 (5th Cir. 1970), cert. denied, 399 U.S. 927 (1970)).
3 Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509, 515 (8th Cir. 1984) (quoting United States v. Walus, 616 F.2d 283, 288 (7th Cir. 1980)).
4 Johnson Waste Materials v. Marshall, 611 F.2d 593, 600 (5th Cir. 1980) (quoting, Laguna Royalty Co. v. Marsh, 350 F.2d 817, 823 (5th Cir. 1965)).
5 Amstar Corp. v. Envirotech Corp., 823 F.2d 1538, 1550 (Fed. Cir. 1987).
6 See Fiskars, Inc. v. Hunt Mfg. Co., 279 F.3d 1378, 1381 (Fed. Cir. 2002) ("[W]hen a district court's Rule 60(b) ruling turns on substantive matters that pertain to patent law, we review the ruling under Federal Circuit law because 'we perceive a clear need for uniformity and certainty in the way the district courts treat [the] issue.'" (alteration in original) (quoting Broyhill Furniture Indus., Inc. v. Craftmaster Furniture Corp., 12 F.3d 1080, 1083 (Fed. Cir. 1993)).
7 See Info. Sys. & Networks Corp. v. United States, 994 F.2d 792, 794 (Fed. Cir. 1993) ("We review a trial court's denial of a motion for relief under Rule 60(b) for abuse of discretion.").
8 Fackelman v. Bell, 564 F.2d 734, 736 (5th Cir. 1977).
9 See Paddington Partners v. Bouchard, 34 F.3d 1132, 1140 (2d Cir. 1994) ("An error in a judgment that accurately reflects the decision of the court or jury as rendered is not 'clerical' within the terms of Rule 60(a).").
10 Fed. R. Civ. P. 60(a).
11 Id.
12 Id. 60(b).
13 Conerly v. Flower, 410 F.2d 941, 944 (8th Cir. 1969).
14 Fed. R. Civ. P. 60(b).
15 Id. 60(c)(1).
16 See Info. Sys. at 795 ("Our review is guided by the well-established principles that a trial on the merits is favored over default judgment and that close cases should be resolved in favor of the party seeking to set aside default judgment.").
17 Seeid. at 795–96 (referring to an assertion that Rule 60(b)(1) requires a showing of "extraordinary circumstances" as "misplaced").
18 Id. at 795.
19 See id. at 796 ("We adopt the balancing approach since it best enables a court to weigh the facts and use its discretion to determine whether a party is deserving of the harsh sanction of default judgment.").
20 Smith Int'l, Inc. v. Hughes Tool Co., 759 F.2d 1572, 1579 (Fed. Cir. 1985), cert. denied, 474 U.S. 827 (1985).
21 Ledet v. United States, 297 F.2d 737, 739 (5th Cir. 1962). In addition to the Fifth Circuit, this standard has been widely applied elsewhere. See United States v. Jasin, 280 F.3d 355, 361 (3d Cir. 2002); United States v. Liebo, 923 F.2d 1308, 1313 (8th Cir. 1991); United States v. Benavente Gomez, 921 F.2d 378, 382 (1st Cir. 1990); United States v. DiBernardo, 880 F.2d 1216, 1224 (11th Cir. 1989).
22 Apotex Corp. v. Merck & Co., 507 F.3d 1357, 1360-61 (Fed. Cir. 2007).
23 Harduvel v. Gen. Dynamics Corp., 801 F. Supp. 597, 607 (M.D. Fla. 1992).
24 See, e.g., Wilson v. Thompson, 638 F.2d 801, 804 (5th Cir. 1981) ("The court did not err in concluding that such evidence would have failed to alter the outcome of that trial.").
25 See Seaboldt v. Pa. R.R. Co., 290 F.2d 296, 299 (3d Cir. 1961) ("[W]e cannot say for a certainty that previous knowledge of [these facts] would have changed the [judgment of the case]. But [they] would have made a difference in . . . counsel's approach to the testimony of several witnesses.").
26 Apotex, 507 F.3d at 1360 ("Rule 60(b)(3) provides that a judgment can be set aside for fraud or misrepresentation only when the motion is made within a year after the judgment, unless there was 'fraud upon the court' or other egregious act not previously uncovered."); see also Fed. R. Civ. P. 60(d)(3) ("This rule does not limit a court's power to . . . set aside judgment for fraud on the court.").
27 Apotex, 507 F.3d at 1360.
28 Id. at 1361.
29 In re Whitney-Forbes, Inc., 770 F.2d 692, 698 (7th Cir. 1985) (citing Bulloch v. United States, 721 F.2d 713, 718 (10th Cir. 1983)).
30 Broyhill Furniture Indus. v. Craftmaster Furniture Corp., 12 F.3d 1080, 1084 (Fed. Cir. 1993).
31 State Street Bank & Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 178 (2d Cir. 2004).
32 Broyhill, 12 F.3d at 1084 (quoting United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (1st Cir. 1990)).
33 State Street Bank, 374 F.3d at 178.
34 Ashland Oil, Inc. v. Delta Oil Prods. Corp., 806 F.2d 1031, 1033 (Fed. Cir. 1986) (applying Seventh Circuit law).
35 Agostini v. Felton, 521 U.S. 203, 215 (1997) (quoting Rufo v. Inmates of Suffolk Cnty Jail, 502 U.S. 367, 388 (1992)).
36 Id.
37 See Flexiteek Americas, Inc. v. PlasTEAK, Inc., No. 08-60996-CIV-COHN/SELTZER, 2012 WL 5364247, at *2 (S.D. Fla. Oct. 31, 2012) (finding that "under Federal Rule of Civil Procedure 60(b)(5) and (6) it would be unequitable and unjust to . . . enforce [] an injunction and an unexecuted money judgment predicated on a patent claim found to be invalid and cancelled" (alterations in original) (quoting the magistrate judge's report) (internal quotation marks omitted)).
38 See Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012) ("In no circumstances . . . may a party use a Rule 60(b) motion as a substitute for an appeal it failed to take in a timely fashion."); Cruickshank & Co. v. Dutchess Shipping Co., 805 F.2d 465, 468 (2d Cir. 1986) ("Having failed to appeal, movants cannot achieve the same result under the guise of a rule 60(b)(5) motion."); Rinieri v. News Syndicate Co., 385 F.2d 818, 822 (2d Cir. 1967) ("[Rule 60(b)(6)] is not to be used as a substitute for appeal when appeal would have been proper . . . ."); 11 Charles A. Wright et al., Federal Practice and Procedure §2851 (3d ed. 1998).
39 See Lazare Kaplan Int'l, Inc. v. Photoscribe Techs., Inc., 714 F.3d 1289, 1297 (Fed. Cir. 2013) ("We recognize the logic of the district court's decision to entertain the validity challenge on remand in light of the broadened claim construction by this court, based on which the district court stated that it 'makes no sense' not to. After all, a new claim construction potentially raises new validity issues." (citation omitted)).
40 See id. at *14 ("[R]ules are rules, and the cross-appeal rule is firmly established in our law. The district court thus erred in relying on Rule 60(b) as a substitute for a cross-appeal.").
41 Id.
42 Id. at *6 ("It is well-settled that a party must file a cross-appeal if, although successful in the overall outcome in the district court, the party seeks, on appeal, to lessen the rights of its adversary or to enlarge its own rights.").
43 See, e.g., Aventis Pharma SA v. Hospira, Inc., 637 F.3d 1341, 1344 (Fed. Cir. 2011) ("As [the appellant] points out, we have not sua sponte struck every improperly filed cross-appeal. This infrequent leniency is not an invitation to flaunt our practice and precedent, and the improper use of a cross-appeal directly contrary to our precedent may meet with sanctions.").
44 Amado v. Microsoft Corp., 517 F.3d 1353, 1363 (Fed. Cir. 2008) (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 (1988)).
45 Id.
46 Ashland Oil, 806 F.2d at 1033 (applying Seventh Circuit law and citing Merit Ins. Co. v. Leatherby Ins. Co., 714 F.2d 673, 682-83 (7th Cir. 1983), cert. denied, 464 U.S. 1009 (1984)).
47 Pioneer Inv. Servs. Co. v. Brunswick Assocs., Ltd., 507 U.S. 380, 393 (1993); Liljeberg, 486 U.S. at 864 ; Lazare, 714 F.3d at 1295.
48 Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 432 (1956).
49 W.L. Gore & Assocs., Inc. v. Int'l Med. Prosthetics Research Assocs., Inc., 975 F.2d 858, 861 (Fed. Cir. 1992).
50 Id. (emphasis in original) (quoting Sears & Roebuck, 351 U.S. at 432).
51 Id. at 862.
52 Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980) (quoting Sears & Roebuck, 351 U.S. at 435).
53 W.L. Gore, 975 F.2d at 862.
54 Fed. R. Civ. P. 54(b).
55 W.L. Gore, 975 F.2d at 862.
56 Id.
57 Sears & Roebuck, 351 U.S. at 436 (emphasis in original).
58 28 U.S.C. §1292(a)(1) (2012).
59 But see Regents of Univ. of Cal. v. Dakocytomation Cal., Inc., 517 F.3d 1364, 1371 (Fed. Cir. 2008) ("While we have not generally certified motions for interlocutory appeal of claim construction, we determined that it was especially desirable in this case in view of the pendency of the related appeal on the denial of the preliminary injunction based on some of the same issues.").
60 Robert Bosch, LLC v. Pylon Mfg. Corp., Nos. 2011-1363, -1364, 2013 WL 2664281 (Fed. Cir. June 14,
2013) (en banc).
61 28 U.S.C. §1292(c)(2) (2006) (emphasis added).
62 Bosch, 2013 WL 2664281 at *8 ("[W]e conclude that the meaning of an 'accounting' in §1292 includes a damages trial."); id. at *12 ("[W]e hold that §1292(c)(2) confers jurisdiction on this court to entertain appeals from patent infringement liability determinations when willfulness issues are outstanding and remain undecided.").
63 See id. at *12 ("[W]e wish to make clear that district courts, in their discretion, may bifurcate willfulness and damages issues from liability issues in any given case.").
64 S. Rep. No. 85-2434, at 7 (1958), reprinted in 1958 U.S.C.C.A.N. 5255, 5260.
65 28 U.S.C. §1292(b) (2012).
66 Id.
67 Id.
68 Chaparral Commc'ns, Inc. v. Boman Indus., 798 F.2d 456, 459 (Fed. Cir. 1986); accord Jeannette Sheet Glass Corp. v. United States, 803 F.2d 1576, 1580 (Fed. Cir. 1986).
69 Jeanette Sheet Glass, 803 F.2d at 1581 ("Though 'there may be exceptional cases where an appellate court is justified in mandamusing the district court to execute the certificate, . . . as a general proposition a refusal to execute . . . will not be interfered with by an appellate court.'" (quoting 6 James Wm. Moore et al., Moore's Federal Practice ¶54.41[3])).
70 28 U.S.C. §1292(b).
71 See, e.g., Symbol Techs., Inc. v. Lemelson Med., Educ. & Research Found., L.P., 422 F.3d 1378, 1381 (Fed. Cir. 2005) (noting that the court had granted an interlocutory appeal to decide whether prosecution laches was a viable defense).
72 See, e.g., Nystrom v. TREX Co., 339 F.3d 1347, 1350 (Fed. Cir. 2003) ("Because claim construction is subject to de novo review as a matter of law, immediate appeal of an interlocutory claim construction ruling without a resolution of all of the factual issues of infringement or validity dependent thereon is often desired by one or both of the parties for strategic or other reasons. But, other than the accommodation for deferred accounting in 28 U.S.C. §1292(c)(2), the rules of finality that define the jurisdiction of this court do not contain special provisions for patent cases or admit to exceptions for strategic reasons or otherwise, short of meeting the conditions specified in Rule 54(b) or 28 U.S.C. §1292(b), (c)(1).").
73 28 U.S.C. §1292(a)(1).
74 35 U.S.C. §283 (2012).
75 Windsurfing Int'l, Inc. v. AMF, Inc., 782 F.2d 995, 1002 (Fed. Cir. 1986) (citing Roche Prods., Inc. v. Bolar Pharm. Co., 733 F.2d 858, 865-66 (Fed. Cir. 1984), cert. denied, 469 U.S. 856 (1984)).
76 Oakley, Inc. v. Sunglass Hut Int'l, 316 F.3d 1331, 1338-39 (Fed. Cir. 2003).
77 Tate Access Floors, Inc. v. Interface Architectural Res., Inc., 279 F.3d 1357, 1365 (Fed. Cir. 2002).
78 Hybritech, Inc. v. Abbott Labs., 849 F.2d 1446, 1451 (Fed. Cir. 1988).
79 Amazon.com, Inc. v. Barnes & Noble.com, Inc., 239 F.3d 1343, 1350 (Fed. Cir. 2001).
80 Id.
81 Id. at 1351.
82 Reebok Int'l, Ltd. v. J. Baker, Inc., 32 F.3d 1552, 1556 (Fed. Cir. 1994).
83 eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006).
84 Robert Bosch, LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1149 (Fed. Cir. 2011); see also MercExchange, L.L.C. v. eBay, Inc., 500 F. Supp. 2d 556, 568 (E.D. Va. 2007) ("Prior to applying the facts of the instant matter to the four-factor test, the court must consider whether a presumption of irreparable harm upon a finding of validity and infringement survives the Supreme Court's opinion remanding this case. Although the parties did not perform extensive briefing on such issue and the Supreme Court's opinion does not squarely address it, a review of relevant caselaw, as well as the language of the Supreme Court's decision, supports defendants' position that such presumption no longer exists." (citing z4 Techs., Inc. v. Microsoft Corp., 434 F. Supp. 2d 437, 440 (E.D. Tex. 2006)). But see Broadcom Corp. v. Qualcomm, Inc., 543 F.3d 683, 702 (Fed. Cir. 2008) ("It remains an open question 'whether there remains a rebuttable presumption of irreparable harm following eBay.'" (quoting Amado v. Microsoft Corp., 517 F.3d 1353, 1359 n.1 (Fed. Cir. 2008)).
85 For example, courts have considered injunctive relief arguments based on, inter alia, (1) whether the patentee is a practicing entity, see, e.g., In re Body Science LLC Patent Litigation, No. 1:12-md-2375- MDS, 2012 WL 5449667, at *4 (D. Mass. Nov. 2, 2012); (2) whether the plaintiff and defendant are in direct competition with one another, see, e.g., Bosch, 659 F.3d at 1150-51 ; (3) whether the patentee was unwilling to license the invention, see, e.g., Ricoh Co. v. Quanta Computer, Inc., No. 06-cv-462-bbc, 2010 WL 1607908, at *1–2 (W.D. Wis. Apr. 19, 2010); (4) whether the patented feature is important to the overall accused product, see, e.g., z4 Techs., 434 F. Supp. 2d. at 440 ; (5) whether the defendant has gained an unfair market advantage over noninfringing competitors, see, e.g., West Penn Specialty MSO, Inc. v. Nolan, 737 A.2d 295, 299 (Pa. Super. Ct. 1999); (6) whether infringement was willful, see, e.g., Edwards Lifesciences AG v. CoreValve, Inc., 699 F.3d 1305, 1314 (Fed. Cir. 2012); (7) whether an irreversible loss of market share occurred, see, e.g., i4i Ltd. Partnership v. Microsoft Corp., 598 F.3d 831, 862 (Fed. Cir. 2010); (8) whether some harm to the plaintiff's reputation occurred, see, e.g., Baker Hughes, Inc. v. Nalco Co., 676 F. Supp. 2d. 547, 554 (S.D. Tex. 2009); (9) the difficulty of calculating damages for future infringement, see, e.g., Broadcom, 543 F.3d at 703-04; and (10) whether an injunction will bankrupt the infringer, Bosch, 659 F.3d at 1155.
86 Apple, Inc. v. Samsung Elec. Co., 678 F.3d 1314, 1327 (Fed. Cir. 2012) (Apple I).
87 Apple, Inc. v. Samsung Elec. Co., 695 F.3d 1370, 1375 (Fed. Cir. 2012) (Apple II).
88 See Brocade Commc'ns Sys., Inc. v. A10 Networks, Inc., No. C 10-3428 PSG, 2013 WL 140039, at *3 (N.D. Cal. Jan. 10, 2013) (expressing doubts about whether "the causal nexus as articulated in Apple II should be required for all irreparable harms offered in support of a request for a permanent injunction" and noting "a curious absence of references to the causal nexus standard" in two recent Federal Circuit decisions addressing permanent injunctions (referring to Presidio Components, Inc. v. Am. Tech. Ceramics Corp., Nos. 2010-1355, 2011-1089 (Fed. Cir. Dec. 19, 2012), and Edwards Lifesciences AG v. CoreValve, Inc., 699 F.3d 1305 (Fed. Cir. 2012))); Petition for Initial Hearing En Banc, Apple, Inc. v. Samsung Elec. Co., Nos. 2013-1129, -1146 (Fed. Cir. Jan. 16, 2013) (requesting that the Federal Circuit resolve preliminary and permanent injunctive relief standards in patent cases, particularly the causal nexus requirement).
89 Hybritech, Inc. v. Abbott Labs., 849 F.2d 1446, 1457 (Fed. Cir. 1988).
90 Id. at 1458.
91 See id. (finding that "with respect to most of [the defendant's] products involved in this proceeding, . . . the public interest in enforcing valid patents outweigh[s] any other public interest considerations," but that "the public interest is served best by the availability of these [accused cancer and hepatitis test] kits".)
92 Id. at 1451.
93 Curtiss-Wright Flow Control Corp. v. Velan, Inc., 438 F.3d 1374, 1378 (Fed. Cir. 2006) (quoting We Care, Inc. v. Ultra-Mark Int'l Corp., 930 F.2d 1567, 1570 (Fed. Cir. 1991)); accord Hybritech, 849 F.2d at 1449.
94 Oakley, Inc. v. Sunglass Hut Int'l, 316 F.3d 1331, 1339 (Fed. Cir. 2003).
95 Signtech USA, Ltd. v. Vutek, Inc., 174 F.3d 1352, 1356 (Fed. Cir. 1999).
96 Fed. R. Civ. P. 65(d)(1).
97 See NLRB v. Express Publ'g Co., 312 U.S. 426, 435-36 (1941) ("[T]he mere fact that a court has found that a defendant has committed an act in violation of a statute does not justify an injunction broadly to obey the statute and thus subject the defendant to contempt proceedings if he shall at any time in the future commit some new violation unlike and unrelated to that with which he was originally charged.").
98 Int'l Rectifier Corp. v. IXYS Corp., 383 F.3d 1312, 1316 (Fed. Cir. 2004).
99 Id.; see also Additive Controls & Measurement Sys., Inc. v. Flowdata, Inc., 986 F.2d 476, 479 (Fed. Cir. 1993).
100 Additive Controls, 986 F.2d at 479.
101 See id. at 479–80 ("The terse order does not state which acts of Adcon constitute infringement of the '318 patent. The order does not limit its prohibition to the manufacture, use, or sale of the specific infringing device, or to infringing devices no more than colorably different from the infringing device.").
102 Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978); see also Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949); Cabot Corp. v. United States, 788 F.2d 1539, 1543-44 (Fed. Cir. 1986); Quantum Corp. v. Tandon Corp., 940 F.2d 642, 644 n.2 (Fed. Cir. 1991).
103 Micro Motion, Inc. v. Kane Steel Co., 894 F.2d 1318, 1320 (Fed. Cir. 1990); Baker Perkins, Inc. v. Werner & Pfleiderer Corp., 710 F.2d 1561, 1564 (Fed. Cir. 1983).
104 Heat & Control, Inc. v. Hester Indus., Inc., 785 F.2d 1017 (Fed. Cir. 1986).
105 Quantum, 940 F.2d at 644 n.2.
106 Cohen, 337 U.S. at 546.
107 Quantum, 940 F.2d at 644 n.2.
108 Fed. R. Civ. P. 62(a)(2).
109 Id. 62(a)(1).
110 Standard Havens Prods., Inc. v. Gencor Indus., Inc., 897 F.2d 511, 512 (Fed. Cir. 1990) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
111 Id.
112 Hilton, 481 U.S. at 777.
113 Id. at 776.
114 E.I. DuPont de Nemours & Co. v. Phillips Petroleum Co., 835 F.2d 277, 278 (Fed. Cir. 1987).
115 Smith Int'l, Inc. v. Hughes Tool Co., 718 F.2d 1573, 1579 (Fed. Cir. 1983).
116 TiVo, Inc. v. Echostar Commc'ns Corp., 446 F. Supp. 2d 664, 666 (E.D. Tex. 2006) (quoting Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 106 F. Supp. 2d 696, 708 (D.N.J. 2000)).
117 Fed. R. Civ. P. 62(b).
118 See Brinn v. Tidewater Transp. Dist. Comm'n, 113 F. Supp. 2d 935, 940 n.3 (E.D. Va. 2000) ("[T]he defendant did not seek a stay of the court's judgment under Rule 62(b) pending the disposition of its Rule 59 Motion to Amend, thereby currently being in clear violation of the court's order . . . , and subject to an order to show cause why it should not be held in contempt for failure to comply.").
119 Allied Maritime, Inc. v. The Rice Corp., 361 F. Supp. 2d 148, 150 (S.D.N.Y. 2004).
120 Fed. R. Civ. P. 62(g).
121 Fed. R. App. P. 8(a)(1).
122 Id. 8(a)(2)(A).
123 Id. 4(a)(1)(A).
124 Id. 4(a)(1)(B).
125 Id. 4(a)(4)(A).
126 Id. 4(a)(4)(B).
127 Id. 4(c).
128 Id. 4(a)(5)(A).
129 Id. 4(a)(6).
130 Fed. Cir. R. 3(a).
131 Id. 12.
132 Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1348 n.1 (Fed. Cir. 2003) (quoting Jordan v. Duff & Phelps, Inc., 815 F.2d 429, 439 (7th Cir. 1987) (internal quotation marks omitted)).
133 Chiron Corp. v. Genentech, Inc., 363 F.3d 1247, 1252 (Fed. Cir. 2004) (quoting Bailey v. Dart Container Corp. of Mich., 292 F.3d 1360, 1362 (Fed. Cir. 2002)).
134 Fed. R. App. P. 3(c)(5).
135 Id. 3(c)(1).
136 Id. 3(c)(4).
137 Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1561 (Fed. Cir. 1994).
138 Durango Assocs., Inc. v. Reflange, Inc., 912 F.2d 1423, 1425 (Fed. Cir. 1990).
139 Fed. R. App. P. 3(e).
140 Fed. Cir. R. 52(a)(2).
141 Id. 52(a)(3)(A).
142 28 U.S.C. §1917 (2012).
143 Fed. Cir. R. 52(c).
©2013 Wolters Kluwer. Originally published by Intellectual Property & Technology Law Journal. This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. This article is only the opinion of the authors and is not attributable to Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, or the firm's clients.
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