Fujitsu Limited v. Tellabs, Inc., Misc. No. 154, 2013 WL No. 5098993 (Fed. Cir. Sept. 11, 2013).
In Fujitsu, the Federal Circuit declined an interlocutory appeal of a patent infringement decision barring Plaintiff from seeking damages based on lost profits. Relying on case law and the certified-question statute, the court said the appeal was premature absent a ruling on liability.
Plaintiff sued alleging patent infringement, and Defendant moved for summary judgment based on whether Plaintiff could recover lost profits. Id at *1. The district court decided the facts of the case did not support Plaintiff’s damages calculation using a lost profits theory. Id. The district court also certified two questions relating to damages to the Federal Circuit under 28 U.S.C. §1292(b). Id. The Plaintiff sought permission to appeal the district court’s decision. Id.
Denying permission to appeal, the Federal Circuit panel majority said:
- The statute allows certification of questions that involve a controlling question of law and may materially advance the ultimate termination of the litigation. Id.
- Interlocutory appeals should only be granted under rare circumstances. Id.
- In prior cases, the court held that questions regarding the theory under which damages may be recovered cannot be controlling. Id.
- Without a determination of liability, there can be no damages. Therefore, any appeal on the quantum of relief was premature. Id.
Judge O’Malley dissented, arguing that granting the petition would materially advance the ultimate termination of the case. Id. at *2.