Purewick Corporation v. Sage Products, LLC

Case: 23-1868 Document: 13 Page: 1 Filed: 06/28/2023
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PUREWICK CORPORATION,
Plaintiff-Appellee
v.
SAGE PRODUCTS, LLC,
Defendant-Appellant
______________________
2023-1868
______________________
Appeal from the United States District Court for the
District of Delaware in No. 1:19-cv-01508-MN, Judge
Maryellen Noreika.
______________________
ON MOTION
______________________
Before LOURIE, HUGHES, and CUNNINGHAM, Circuit
Judges.
LOURIE, Circuit Judge.
ORDER
PureWick Corporation moves to dismiss this appeal for
lack of jurisdiction. ECF No. 4. Sage Products, LLC op-
poses the motion and cross-moves to stay the appeal, which
PureWick opposes. ECF No. 10.
Case: 23-1868 Document: 13 Page: 2 Filed: 06/28/2023
2 PUREWICK CORPORATION v. SAGE PRODUCTS, LLC
PureWick filed this suit asserting infringement of four
patents, including U.S. Patent No. 8,287,508 (“the ’508 pa-
tent”). The district court stayed proceedings on the ’508
patent pending a related appeal regarding a final written
decision from an inter partes review (“IPR”) that found the
asserted claims unpatentable. After a trial, the jury found
in favor of PureWick on the remaining three patents. The
district court subsequently acted on various post-trial mo-
tions on March 31, 2023, though there remain disputes re-
garding final judgment. And while this court has affirmed
the IPR decision, PureWick Corp. v. Sage Prods., LLC, No.
2022-1697, 2023 WL 2808068 (Fed. Cir. Apr. 6, 2023), the
district court has not taken further action on the ’508 pa-
tent.
Ordinarily, we only have jurisdiction to review a “final
decision of a district court,” 28 U.S.C. § 1295(a)(1), which
“end[s] the litigation on the merits, and the
judge . . . clearly declare[s her] intention in this respect,”
FirsTier Mortg. Co. v. Invs. Mortg. Ins. Co., 498 U.S. 269,
273–74 (1991) (cleaned up). Here, the district court has not
yet “decide[d] or dismisse[d] all claims and counterclaims
for each party” relating to the ’508 patent. SafeTCare Mfg.,
Inc. v. Tele-Made, Inc., 497 F.3d 1262, 1267 (Fed. Cir.
2007). See ECF No. 4 at 13; ECF No. 10 at 17; PureWick
Corp. v. Sage Prods., LLC, No. 19-1508 (D. Del. Apr. 21,
2023), ECF No. 371-1 at 5 n.6.
Sage argues that its premature notice of appeal can be
saved by Federal Rule of Appellate Procedure 4(a)(2), but,
before the premature notice of appeal was filed, Sage itself
told the district court that “this judgment is not final unless
it disposes of all claims and defenses, including the ’508 pa-
tent,” ECF No. 371-1 at 5 n.6. Thus, there was no reason-
able basis to conclude that the court had entered a final
decision before the notice of appeal was filed such that
Rule 4(a)(2) does not apply. FirsTier, 498 U.S. at 273–74.
Accordingly,
Case: 23-1868 Document: 13 Page: 3 Filed: 06/28/2023
PUREWICK CORPORATION v. SAGE PRODUCTS, LLC 3
IT IS ORDERED THAT:
(1) The motion to dismiss is granted. The appeal is
dismissed for lack of jurisdiction.
(2) The motion to stay is denied.
(3) Each side shall bear its own costs.
FOR THE COURT
June 28, 2023 /s/ Jarrett B. Perlow
Date Jarrett B. Perlow
Acting Clerk of Court
cc: United States District Court for the District of Dela-
ware.