Opinion · Court of Appeals for the Federal Circuit
In Re Convertible Rowing Exerciser Patent Litigation
903 F.2d 822
- Type
- Opinion
- Court
- Court of Appeals for the Federal Circuit
- Jurisdiction
- Federal
- Date
- 1990-05-14
- Topic
- general
How later courts describe this case
- stating that the court may deny application to appeal without specifying the grounds for basis of denial
Citator
UpLaw has not yet analyzed In Re Convertible Rowing Exerciser Patent Litigation. The absence of a flag is not a finding that it is good law.
- Cited by
- 102 opinions
IN RE CONVERTIBLE ROWING EXERCISER PATENT LIT,903 F.2d 822(Fed. Cir. 1990)
IN RE CONVERTIBLE ROWING EXERCISER PATENT LITIGATION.
Miscellaneous No. 268.
United States Court of Appeals, Federal Circuit.
May 11, 1990.
Suggestion for Rehearing In Banc Declined May 14, 1990.
Melvin F. Jager and Richard A. Kaplan, William Brinks Olds Hofer Gilson Lione, of Chicago, Ill., represented defendant Ajay Enterprises Corp.
Thomas J. Rossa, Trask, Britt Rossa, of Salt Lake City, Utah, represented defendant Weslo, Inc.
Lyn M. Schlitt and James A. Toupin, Office of General Counsel, U.S. International Trade Commission, of Washington, D.C., represented the U.S. International Trade Commission.
[1] PETITION FOR REHEARING
Before ARCHER, Circuit Judge, BALDWIN and BENNETT, Senior Circuit Judges.
[2] ORDER
[3] Ajay Enterprises Corporation, et al. (Ajay) has petitioned for rehearing and suggestedin bancconsideration1of the court's April 4, 1990 order denying their petition for permission to appeal pursuant to28 U.S.C. § 1292(b), (c).
[4] Ajay's petition for rehearing is frivolous. First, as the legislative history of28 U.S.C. § 1292(b) makes clear:
The granting of the appeal is also discretionary with the court of appeals which may refuse to entertain such an appeal in much the same manner that the Supreme Court today refuses to entertain applications for writs of certiorari.
It should be made clear that if application for an appeal from an interlocutory order is filed with the court of appeals, the court of appeals may deny such application without specifying the grounds upon which such a denial is based. It could be based upon a view that the question involved was not a controlling issue. It could be denied on the basis that the docket of the circuit court of appeals was such that the appeal could not be entertained for too long a period of time. But, whatever the reason, the ultimate determination concerning the right of appeal is within the discretion of the appropriate circuit court of appeals.
[5] S.Rep. No. 2434, 85th Cong. 2d Sess. 3, 4,reprinted in1958 U.S. Code Cong. Admin. News 5255.
[6] Further, this court has on four occasions considered the question of law involved inPage 823Ajay's petition.2See Texas Instruments, Inc. v. U.S.Int'l Trade Comm'n,851 F.2d 342, 7 USPQ 2d 1509 (Fed. Cir. 1988);Tandon Corp. v. U.S. Int'l Trade Comm'n,831 F.2d 1017, 4 USPQ 2d 1283 (Fed. Cir. 1987);Lannom Mfg.Co., Inc. v. U.S. Int'l Trade Comm'n.799 F.2d 1572, 231 USPQ 32 (Fed. Cir. 1986).Corning Glass Works v. U.S. Int'l TradeComm'n.799 F.2d 1559, 230 USPQ 822 (Fed. Cir. 1986). Moreover, these decisions were referred to and discussed by Diversified Products Corp. in its thorough and well-written opposition to Ajay's petition for permission to appeal.
[7] Accordingly,
[8] IT IS ORDERED THAT:
[9] Ajay's petition for rehearing is denied.Page 1555
- Only the petition for rehearing is before this panel. ↩
- The question of law as set forth by the United States District Court for the District of Delaware is:
whether the determination of the ITC invalidating the '071 patent, affirmed by the Court of Appeals for the Federal Circuit ("Federal Circuit") made relative to a determination that no violation of section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337(1982)) occurred, should be given preclusive effect in this Court despite the grant of original jurisdiction over patent matters placed in the District Courts under28 U.S.C. § 1338(1982).
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