Patent Law

Tossed Salad

By Gary Odom and Jordan Kuhn

Sollami sued Kennametal over three patents. Kennametal was granted a stay pending USPTO examination of a reissue application of one of the asserted patents. Sollami appealed. In a non-precedential decision, CAFC ruled that a stay is not appealable, unless it puts the patent owner "out of court."

Sollami v. Kennametal (CAFC 2008-1345) non-precedential

Kennametal contends that the court should dismiss Sollami's appeal because the district court's order staying litigation pending reissue proceedings is not a final appealable order. Sollami alleges that this court has jurisdiction because, inter alia, the stay order effectively puts Sollami "out of court."

In Gould v. Control Laser Corp., 705 F.2d 1340 (Fed. Cir. 1983), we held that an order staying district court proceedings pending reexamination by the PTO was not appealable. By contrast, in Slip Track Sys., Inc. v. Metal Lite, Inc., 159 F.3d 1337, 1340 (Fed. Cir. 1998), this court held that under the facts of that case, an order staying district court proceedings pending reexamination by the PTO was an appealable order because it effectively could put one of the appellants out of court. We explained that after the PTO reexamination proceedings concluded, it was possible that the appellants would be unable to raise the issue of priority of invention in the district court, and the stay order was a "'final decision' for appealability purposes." Slip Track, 159 F.3d at 1340.

Sollami has not shown that the district court's stay order effectively puts Sollami out of court.

The CAFC thus ruled "we are without jurisdiction over this appeal."

Full post as published by The Patent Prospector on August 02, 2008 (boomark / email).