Stays Pending Appeal

August Technology Corp. v. Camtek (Fed. Cir. 2010) (non-precedential order)

A jury ruled that Camtek's semiconductor wafer inspection system infringed August's patent rights. The district court then issued a permanent injunction ordering the adjudged infringer to refrain from making, using, selling or offering-for-sell the infringing device. The court also ordered that Camtek not communicate with third parties located in the US for the purposes of offering to sell the device.

Along with its appeal on the merits, Camtek filed an emergency motion to stay the injunctive relief until the appeal is resolved. 

Under Federal Circuit law, the court will stay injunctive relief if either (1) the moving party shows a substantial likelihood that the injunction will be lifted as part of the merits decision; or (2) the moving party presents a strong case on the merits and the relative harms associated with the stay favor the moving party.  

Writing for the panel, Judge Lourie denied the stay — writing only that Camtek had not “met its burden.” 

12 thoughts on “Stays Pending Appeal

  1. The journey of life there are many, Are also well, Who are busy day for harvest, Can harvest has also bitter sweet. Both are rich people are poor, Jack is difficult to buy fitness, So I hope you always happy.

  2. The district court’s decision says that “The case is remanded to the agency for further proceedings that are consistent with this opinion.” We disagree with what that means. I think that meant, “In the foregoing opinion, this court has explained why your method of calculating PTA’s in unlawful, and I am directing you to fix it.” I believe you interpret it to mean, “It’s just this judge’s opinion that what you are doing it wrong, so take it under advisment, and think about what to do about it (if anything).”

    No, I do recognize a remand as a direct order to act in a particular way. It’s just that the order isn’t time-sensitive and meant to have immediate effect in the same way as an injunction, and like any non-injunction judgment in any other proceeding you don’t have to comply until you get the second opinion you asked for.

    If the decision hadn’t been appealed further, by no means would compliance with the order on remand have been optional.

    Why do you think there no final judgment/order in WYETH?

    Because we disagree on what “final” means in this context. You’re using it to mean “on the merits”, and I’m using it to mean “not subject to further appeal”.

    I think most people read the “consistent with this opinion langauge” to mean for the reason explained in the 10 pages above “your algorithm for calculating PTA is wrong, and you are ordered to fix that.”

    That’s not technically correct, but it leads to the right result. The order on remand applies only to the Wyeth case. The PTO must apply the same rule for calculating PTA in all other cases because the Wyeth case is precedential and it tells us what the law is, but the court is technically powerless to require the PTO to do anything in a case that is not before the court.

    For example, when a district court orders a state to marry same-sex couples

    … that’s an injunction. Injunctions are general orders about how to conduct oneself, and are executory immediately and permanently. Remands are specific orders about how to decide a particular dispute, and are executory only on the one occasion that dispute next comes up on the lower tribunal’s docket.

    I just don’t understand why the PTO believed that it was unneccesary to move for a stay.

    Because there was nothing to stay. A remand just means “decide the case again, and decide it right this time”. The “decide the case again” part doesn’t even arise until all appeals have been exhausted.

  3. This August Technology decision, with a business-shut-down injunction issued promptly after trial and no stay for an appeal, is an appropriate reminder for all those who had cried the end of effective patent exclusivity enforcement after the Sup. Ct. eBay decision.

  4. IANAE, interesting comments that are valid reasons for supporting a motion for a stay of the district court’s order, but I disagree that the PTO was not ordered to do anything by the PTO.

    The district court’s decision – link to patentdocs.typepad.com – says that “The case is remanded to the agency for further proceedings that are consistent with this opinion.” We disagree with what that means. I think that meant, “In the foregoing opinion, this court has explained why your method of calculating PTA’s in unlawful, and I am directing you to fix it.” I believe you interpret it to mean, “It’s just this judge’s opinion that what you are doing it wrong, so take it under advisment, and think about what to do about it (if anything).”

    Why do you think there no final judgment/order in WYETH? If, as you say, “the remand [wasn't] effective to cause the PTO to act in the case, because there [was] no final decision,” then why did the PTO appeal? If there was not a final judgment, the appellate court would not have had jurisdiction to review the case, so your conjecture that there was not a final “decision” [sic, judgment] cannot be correct. Are you saying that the district court issued an advisory opinion? That cannot be correct either.

    By your logic, if there was a “remand,” then the WYETH v. DUDAS case should gone back to the PTO to have the PTA determined for that case. If Wyeth was unsatisfied with the second determination of the PTA by the PTO then it would have needed to sue in the district court again. Even the PTO doesn’t believe that based on the district court’s order this is what should have happened.

    Point (2) about whether the WYETH order applied only to Wyeth’s patent or to all PTA calculations by the PTO unfortunately can be debated because the district court’s order was not as clear as it should have been. I grant that it’s possible to interpret the “further proceedings that are consistent with this opinion” language of the court’s order to mean “fix Wyeth’s patent term, and that’s it,” but I think most people read the “consistent with this opinion langauge” to mean for the reason explained in the 10 pages above “your algorithm for calculating PTA is wrong, and you are ordered to fix that.”

    I think your comments on point (3) just illustrates that the PTO should moved for a stay of the district court’s order for the reasons you mention. However, they don’t provide a reason for not applying for a stay. For example, when a district court orders a state to marry same-sex couples and the state thinks it would be a big pain to undo all those marriages if the district court’s order were overturned, the state appeals and moves for a stay pending appeal. It doesn’t just ignore the district court’s order because of the chaos that might ensue.

    I think a stay pending appeal of the district court’s order in WYETH would have totally correct, and it should have been issued. I just don’t understand why the PTO believed that it was unneccesary to move for a stay.

  5. (1) is just wrong from a civil procedure standpoint, correct?

    Actually, (1) is correct. The District Court’s order wasn’t an injunction, it was a remand with reasons. As long as the case is on appeal, the remand isn’t effective to cause the PTO to act in the case, because there is no final decision. If you look at it another way, the appeal inherently stays the remand by directing the case up instead of down.

    Incidentally, (2) is also correct. The decision is only strictly binding in the particular case, and the only reason for the PTO to follow it in other cases would be because it’s a precedent and the most authoritative statement of the law that they have. And it’s not really much of a precedent until the appeal process has been exhausted.

    (3) is correct too. It’s much easier to retroactively fix all the other patents if they’re all wrong in the same way, especially if the fix is to extend patents rather than to shorten them. It would have been very difficult procedurally for the PTO to tell everyone with long PTA that their PTA was being reduced as a result of the appeal in Wyeth, if they even had the authority to do that at all. If they couldn’t retroactively shorten the overly-long PTA, some patentees might have gotten more patent term than they were entitled to.

    Well, it makes sense to me anyway.

  6. This reminds me of an issue in WYETH V. DUDAS that was never answered adequately for me.

    In WYETH, the district court held that the PTO was calculating Patent Term Adjustments incorrectly and ordered the PTO to take corrective action “consistent with this opinion.” The PTO then appealed the district court’s judgment to the Federal Circuit but did NOT move for a stay of the district court’s order and continued to calculate the PTA’s using the algorithm that the district court had held was incorrect.

    Various PTO officials I spoke with claimed that the PTO’s procedure was correct for one or all of the following reasons: (1) “the decision is not final for us until the Federal Circuit rules on it”; (2) the distrct court’s order applied only to Wyeth’s particular patent, but not to the PTO’s PTA calculation procedure in general; and (3) “there would be chaos if we followed the district court’s order and issued longer PTA’s and then the CAFC reversed, because then we would have to go back and fix all the patents for which we had granted the incorrect PTA’s

    (1) is just wrong from a civil procedure standpoint, correct? (2) is the best argument, but it looked to me like the district court ordered the PTO to conform its PTA calculation procedure to a proper interpretation of the statute, not that the court ordered the PTO to fix Wyeth’s patent only. (3) is an argument to support a motion for a stay, but not a reason for not needing to file the motion.

    Did anyone else notice this issue and/or did you see this differently than I did? I was surprised that it was never litigated.

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