Egyptian Goddess, Inc. v. Swisa, Inc.

ORDER

LOURIE, Circuit Judge.

Egyptian Goddess, Inc. and Adi Torkiya respond to this court’s order directing them to show cause why this appeal should not be dismissed as premature.

The United States District Court for the Northern District of Texas decided, on summary judgment, that Swisa, Inc. et al. do not infringe. Egyptian Goddess and Adi Torkiya appealed. However, a declaratory judgment counterclaim regarding invalidity remains pending. Thus, there is no final judgment and any appeal is premature. Nystrom v. TREX Co., Inc., 339 F.3d 1347 (Fed.Cir.2003). If the district court subsequently issues a Fed.R.Civ.P. 54(b) judgment, a new appeal may of course be filed.

Accordingly,

IT IS ORDERED THAT:

(1) This appeal is dismissed as premature.

(2) All sides shall bear their own costs.