by Dennis Crouch
Mondis Tech. LTD v. LG Electronics (Fed. Cir. 2021)
This is an appellate procedure case focused on the timing of the notice of appeal. The statute creates a hard 30-day deadline for filing a Notice of Appeal (NOA). 28 U.S.C. § 2107(a). One difficulty though is that the statutory scheme muddies the water in terms of when to start counting. The courts have previously figured out how it works for ordinary appeals — you get 30-days from the final judgment. But, there is a special statute that allows interlocutory appeals in patent infringement lawsuits that creates a right to appeal in cases that are “final except for an accounting.” 28 U.S.C. § 1292(c). With that provision, it would seem that the notice of appeal should be filed within 30 days of the court action that triggers the final-except-for-an-accounting status. But, there is another level of complication that comes from the NOA tolling provision found in Fed. R. App. Proc. 4(a)(4). Rule 4(a)(4) focuses on post-verdict situation where a party files several motions for Judgment as a Matter of Law (JMOL) or New Trial. In that situation, the Rule states that “the time to file an appeal runs … from the entry of the order disposing of the last such remaining motion.” Rule 4(a) then goes on to particularly state that the notice of appeal is due 30 days after the last JMOL/NewTrial motion is decided.
The holding here: The court read an exception into Rule 4(a) — finding that it does not apply to § 1292(c) interlocutory appeals. As such, the appeal here was untimely and therefore dismissed for lack of jurisdiction.
Lets back up: At the trial court, a jury with the patentee and concluded that LG was willfully infringing the Mondis/Hitachi U.S. Patent No. 7,475,180. Post-verdict, the district court denied LG’s motions for JMOL on infringement and validity and then later granted a new trial on damages and willfulness.
Normally, a new trial delays appeal because the case is not yet final — and so no immediate appeal under the Final Judgment Rule. 28 U.S.C. § 1291. The statute also provides for interlocutory appeal in this particular situation — patent infringement lawsuits that are “final except for an accounting.” 28 U.S.C. § 1292(c). In Robert Bosch, LLC v. Pylon Mfg. Corp., 719 F.3d 1305, (Fed. Cir. 2013), an en banc Federal Circuit held that “an ‘accounting’ in the context of § 1292(c)(2) includes the determination of damages.”
So, LG had a right to appeal once the renewed JMOL motions on liability were denied. But, LG did not appeal until months later, after the new trial on damages was ordered. As mentioned above, FRAP 4 typically tolls appeals until all post-verdict motions are decided. Here, the court held that the rule does not fully apply in the 1292(c) interlocutory appeal situation — but rather only tolls the timing of the interlocutory appeal until all liability-related motions are decided.
When only motions unrelated to the judgment being appealed remain, the judgment is final except for an accounting and the time to file an interlocutory appeal begins.
Because FRAP 4(a)(4) does not toll the interlocutory appeal period for outstanding motions unrelated to the interlocutory judgment, the damages motions that remained outstanding after the September Order did not toll the time frame for LG to file its notice of appeal on the liability portion of this case. . . . Because LG did not file its notice of appeal within thirty days of the issuance of the September Order, its notice of interlocutory appeal was untimely.
Slip Op. The court notes that this interlocutory appeal process is optional. LG will still be able to appeal all of the issues once the damages/willfulness trial is completed.