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Published by: YCSTBlog on Mar 26, 2010
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CORDANCE CORPORATION,::Plaintiff,::v.:Civil Action No. 06-491-MPT:AMAZON.COM, INC.:::Defendant.:
On March 10, 2010, Plaintiff Cordance Corporation (“Cordance”) and defendantAmazon.com, Inc. (“Amazon”) jointly filed a letter containing each party’s proposedschedule for resolution of the outstanding issues in this case.
In deciding whichproposed schedule to adopt, the court was called upon to answer two questions: (1)Prior to Federal Circuit review pursuant to 28 U.S.C. § 1292(c)(2), does the court haveto hold a damage trial or rule on Amazon’s equitable defenses and Cordance’s requestfor equitable relief? (2) Can the court certify for Federal Circuit review Amazon’s claimsfor declaratory relief pursuant to Rule 54(b)? The parties addressed these issues intheir March 10 joint letter, that letter’s supporting memoranda, in Cordance’s motion forleave to file a reply, and in Amazon’s opposition to that motion. For the reasonsexplained below, the court grants Cordance’s motion for leave to file a reply, but ordersthat Amazon’s proposed schedule be adopted as revised by the court.
D.I. 520.
Cordance urged the court to adopt the following schedule:1.A three-day jury trial on damages, followed immediately by;2.A one-day bench trial on Amazon's equitable defenses, followedimmediately by;3. A hearing to determine the form of any equitable relief to which Cordanceis entitled;4. Any appeal a party wishes to bring.Amazon proposed the following schedule:1.A two-day bench trial on Amazon's equitable defenses to be held beforeJune 8, 2010 (when Dr. Alvisi goes to China), followed by;2.A hearing on Cordance's request for equitable relief;3.Appeals
II. DISCUSSIONA. Ripeness under 28 U.S.C. § 1292(c)(2)
Cordance argues that three separate yet-to-be-resolved issues in this casepreclude federal circuit review pursuant to 28 U.S.C. § 1292(c)(2): (1) Cordance’srequest for injunctive relief (in the form of an injunction or compulsory license); (2)Amazon’s equitable defenses; and (3) Cordance’s request for damages. Cordance iscorrect with respect to Amazon’s equitable defenses and Cordance’s request forequitable relief.Pursuant to 28 U.S.C. § 1292(c)(2), the Federal Circuit may hear appeals inpatent cases where judgment “is final except for an accounting.” “‘Accounting,’ as usedin the statute, refers to infringement damages pursuant to 35 U.S.C. § 284.”
Thus,Cordance’s unresolved request for damages will not preclude Federal Circuit review.
Special Devices, Inc. v. OEA, Inc.
, 269 F.3d 1340, 1343 (Fed. Cir. 2001).
Amazon’s equitable defenses and Cordance’s request for equitable relief will, however,provide grounds for the Federal Circuit to dismiss an appeal in this case as premature.
 Cordance and Amazon agree that the court should rule on Amazon’s equitabledefenses and Cordance’s request for equitable relief. The parties disagree, however,with regard to how the court should address Cordance’s request for equitable relief.Cordance seeks a permanent injunction, or, in the alternative, imposition of anongoing royalty. Cordance correctly asserts that the court must rule on this request.Cordance, however, goes further and urges the court to hold a damages trial, arguingthat a damages trial will help inform the court’s decision as to the amount of anyongoing royalty or compulsory license. As the court noted above, however, a damagestrial is not needed to ensure jurisdiction in the Federal Circuit–Amazon correctly arguesthat 28 U.S.C. § 1292(c)(2) expressly authorizes district courts to defer a separate jurytrial on damages until after the parties have appealed and finalized the judgment onliability.
As Amazon contends, a damages trial is not a necessary predicate to thecourt’s ruling on a request for equitable relief.Amazon argues that the court should first rule on Cordance’s request forpermanent injunction. Then, Amazon asserts, if the court chooses to deny Cordance’srequest for permanent injunction, the court may deny the alternative request for
See Advanced Cardiovascular Sys., Inc. v. Medtronic Vascular, Inc.
, 231 Fed. Appx. 962, 963(Fed. Cir. 2007) ("We agree with ACS that Medtronic's appeal is premature because ACS's request forpermanent injunctive relif in its complaint remains pending and thus the case is not final except for anaccounting.");
Schwarz Pharma, Inc. v. Teva Pharms. USA, Inc.
, 132 Fed. Appx. 369 (Fed. Cir. 2005)("We agree with Scwarz that Teva's appeal is premature because Schwarz's request for permanentinjunctive relief remains pending before the district court.").
28 U.S.C. § 1292(c)(2);
In re Calmar, Inc.
, 854 F.2d 461, 464 (Fed. Cir. 1988) ("Hence it is clearthat the purpose of the legislation, § 1292(c)(2), allowing interlocutory appeals in patent cases was topermit a stay of a damages trial.").

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