Rogers v. Tristar Products, Inc.

NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
BRUCE A. ROGERS,
Plaintiff-Appellant,
V.
TRISTAR PRODUCTS, ]NC.,
Defendant-AppelZee,
AND
UNITED STATES,
Defenclant~Cr0ss-Appellant.
2011-1494, -1495
Appeals from the United States District Court for the
Eastern District of Pennsy1vania in case n0. 11-CV-1111,
Judge Eduardo C. Robreno.
ON MOTION
Before BRYs0N, ScHALL, and PR0sT, Circuit Judges.
ScHALL, C‘ircuit Judge.
ORDER
ROGERS V. TRIS'I‘AR PRODUCTS 2
We construe Bruce A. Rogers’ response to this court’s
September 23, 2011 order as a motion to dismiss this
appeal and to vacate the decision of the United States
District Court for the Eastern District of Pennsylvania.
On September 16, 2011, the President signed into law
the Leahy-Smith America Invents Act, H.R. 1249, 112th
Cong. (1st Sess. 2011), amending 35 U.S.C. § 292 to
eliminate the qui tom provision on which this action was
predicated. This act included the following text regarding
the effective date of this provision: "The amendments
made by this subsection shall apply to all cases, without
excepti0n, that are pending on, or commenced on or after,
the date of the enactment of this Act." Leahy-Smith
America Invents Act, Pub. L. No. 112-29 § 16(b)(4), 125
Stat. 284, 329 (2011) ("the Act"). Accordingly, on Septem-
ber 16, 2011, the court ordered the parties to advise the
court of the effect of this legislation on the status of the
case.
On October 17, 2011, Rogers filed a response to this
court’s order. Rogers’ response agreed that the Act ren-
dered this appeal and the determinations of the district
court moot. Accordingly, Rogers requests the court to
vacate the district court’s decisi0n.
In light of the amendments to 35 U.S.C. § 292 and
the parties’ agreement on the effect of the Act under the
facts and circumstances of this case, this appeal is dis-
missed as moot. Because the circumstance that rendered
this case moot was the amendment of § 292(b) by Con-
gress, over which the parties had no control, it is appro-
priate not only to dismiss the appeal but to vacate the
district court’s determination as well. 28 U.S.C. § 2106;
see Al1)arez v. Smith, 130 S.Ct. 576, 581 (2009) ("App1ying
this statute, we normally do vacate the lower court judg-
ment in a moot case because doing so ‘clears the path for
future relitigation of the issues between the parties,’
preserving ‘the rights of all parties,’ while prejudicing
3 ROGERS V. TRlSTAR PRODUCTS
none ‘by a decision which . . . was only preli1ninary."’
(citing United States o. Munsingwear, Inc., 340 U.S. 36,
40 (195O))); Tafas o. Kappos, 586 F.3d 1369, 1371 (Fed.
Cir. 2009) ("Vacatur . . . is appropriate if the mootness
arises from external causes over which the parties have
no control" (citing U.S. Bancorp Mortg. Co. v. Bon,ner Mall
P’ship, 513 U.S. 18, 25 (1994))).
Accordingly,
I'r ls OaDERE:o THAT:
(1) The motion is granted The district court’s decision
dismissing the case is vacated as moot.
(2) The case is remanded with instructions to dismiss
(3) This appeal is dismissed.
(4) Each side shall bear its own costs.
(5) All other pending motions are moot.
FoR THE CoURT
NUv 1 6 2011 /s/ Jan Horbaly
Date J an Horbaly
Clerk
cc: Edward T. Kang, Esq. F ED
savers P. Ba1