ON MOTION

ORDER

America Online, Inc. (AOL) moves to dismiss this appeal and cross-appeal, from the United States District Court for the Northern District of Illinois in 04-CV-04240, for lack of jurisdiction. AOL states that Windy City Innovations, LLC consents.

Windy City sued AOL for infringement. AOL filed counterclaims. The district court granted summary judgment of non-infringement and dismissed the case. AOL states that its declaratory judgment counterclaims remain pending. Thus, there is no final judgment and any appeal is premature. Nystrom v. TREX Co., Inc., 339 F.3d 1347 (Fed.Cir. 2003). If the district court disposes of the counterclaims and enters final judgment, then of course the parties may file appeals.

Accordingly,

IT IS ORDERED THAT:

(1) The motion to dismiss is granted.

(2) Each side shall bear its own costs.