Norian Corp. v. Stryker Corp.

U.S. Court of Appeals for the Federal Circuit October 31, 2002

Norian Corp. v. Stryker Corp., 50 F. App'x 434 (Fed. Cir. 2002)

Opinion of the Court

DYK, Circuit Judge.

ORDER

Norian Corporation moves to treat its appeal, docketed as 02-1507, as a supplement to its previous notice of appeal, 02-1490. In the alternative, Norian moves to reinstate appeal 02-1507. Stryker Corporation opposes. Norian replies.

On May 2, 2002, after trial, the United States District Court for the Northern District of California entered judgment regarding invalidity of one patent. Norian filed post-judgment motions which the district court decided on June 18, 2002. On July 1, 2002, Norian filed a notice of appeal (02-1506), stating that it was seeking review of matters related to the patent that had been held invalid. On July 10, 2002, the district court, pursuant to Fed.R.Civ.P. 60(a), entered an order that amended the earlier judgment to include its previous determination, by summary judgment, that *435a second patent was not infringed. On July 18, 2002, Norian filed another appeal (02-1507), stating that it was also seeking review of matters relating to the second patent that was found to not be infringed.* Norian failed to timely pay a filing fee with this second appeal, and this court dismissed appeal 02-1507 for failure to pay the filing fee.

Norian states that counsel did not believe that a second filing fee was required for the second appeal, based on counsel’s misunderstanding that it was an amended notice of appeal. However, a second appeal was required to seek review of the issues that had not been included in the earlier appeal and were included in the amended judgment. In the event that the second notice of appeal is not treated as an amended notice of appeal, Norian offers to pay the fee.

Upon consideration thereof,

IT IS ORDERED THAT:

(1) Noriaris motion to treat its second notice of appeal as a supplemental notice of appeal is denied.

(2) Norian’s alternative motion to reinstate appeal 02-1507 is granted. The mandate is recalled and the court’s order dismissing 02-1507 for failure to pay the fee is vacated. Norian shall pay the filing fee with the district court within 10 days of the date of filing of this order.

(3) The revised official caption is reflected above.

Because both of Norian’s appeals were filed within 30 days after entry of the order denying the post-judgment motions, see Fed. R.App. P. 4, they were both timely filed.

Reference

Full Case Name: NORIAN CORPORATION v. STRYKER CORPORATION, Defendant-Cross
Status: Published