One of the guiding principles of appellate jurisdiction is the “final judgment rule” that defers jurisdiction of an appellate court “until there has been a decision by the district court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981). Much to the chagrin of many a patent litigator and litigant, it is this principle that precludes most interlocutory appeals (such as review of claim construction orders), no matter how important the issue may be. There is, however, an exception to the final judgment rule with respect to the Federal Circuit’s jurisdiction hidden away in 28 U.S.C. 1292(c)(2), that permits interlocutory appeals when a judgment is final “except for an accounting.” The en banc Federal Circuit in Robert Bosch, LLC v. Pylon Manufacturing Corp. took on the question (sua sponte) whether an “accounting” as used in Section 1292(c)(2) included (1) a trial on damages; and (2) a trial on the issue of wilfullness. A divided court (yet again) held that, yes, the Federal Circuit does have jurisdiction over a case that is final on all issues other than damages and willfulness.
The en banc decision comes complete with the majority opinion, two opinions concurring-in-part and dissenting-in-part and a fourth opinion by O’Malley dissenting. It would be both fun and worthwhile to dive into the details of the four opinions and analyze the continued fractures in the court on this issue (and in general), but other than law school professors, who has the time! Suffice it to say that unless and until the Supreme Court chimes in on this issue, district court judges now know that should they decide to bifurcate issues of damages and willfulness (as is Judge Robinson’s practice in D. Del.), that decision will not impair the ability of the parties to appeal the liability issues.