The Federal Circuit recently dismissed an interlocutory appeal filed by LG Electronics as untimely because LG filed its notice of appeal more than seven months after the district court’s order disposing of all LG post-trial motions except for its post-trial motion on damages. The opinion stands as a lesson to all parties contemplating an appeal of issues related to a district court patent litigation decision to promptly do so despite other pending unresolved issues.
The plaintiff, Mondis Technology Ltd., and joinder plaintiffs, Hitachi Maxell Ltd., and Maxell, Ltd. (collectively, “Mondis”) had sued LG for infringement of US Patent No. 7,475,189. This patent relates to a display unity configured to receive video signals from an external video source. The jury found that LG infringed certain claims of the asserted patent, that the asserted claims were valid, and that LG’s infringement was willful, and awarded Mondis $45M in damages. In response to the verdict, LG filed several post-trial motions regarding infringement, invalidity, willfulness, and damages. The district court denied LG’s post-trial motions on infringement, invalidity, and willfulness in an Order dated September 24, 2019 (“September Order”). It subsequently granted LG’s post-trial motion for a new trial on damages in the April 22, 2020 (“April Order”). On May 8, 2020, LG filed an interlocutory appeal to the Federal Circuit challenging inter alia the district court’s September Order. Mondis moved to dismiss this appeal as untimely arguing that it should have been brought within 30 days of the September Order.
The Federal Circuit has jurisdiction to hear certain interlocutory appeals filed under 28 U.S.C. § 1292(c)(2) for “judgment[s] in a civil action for patent infringement which would otherwise be appealable to the… Federal Circuit and [are] final except for an accounting.” In reaching its decision in the appeal by LG, the Federal Circuit noted that it had previously held that “under § 1292(c)(2), a judgment is final except for an accounting when all liability issues have been resolved, and only a determination of damages remains.” The Federal Circuit further noted that, here, “this case was final except for an accounting after the September Order, and LG had thirty days from the September Order to file notice of interlocutory appeal.” Thus, the district court’s September Order and not its April Order started the 30-day time limit for noticing an interlocutory appeal to the Federal Circuit. The Federal Circuit also noted that its decision in this case was in accord with the Supreme Court’s 1988 decision in Budinich v. Becton Dickinson & Co.
In support of the timeliness of its appeal, LG contended that Rule 4 of the Federal Rules of Appellate Procedure (FRAP) tolled the start of the thirty-day clock for appeal until the entry of the April Order. FRAP 4 provides that “if a party timely files any of several enumerated motions, including post-trial motions for judgment under FRCP 50(b) or for a new trial under FRCP 59, ‘the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion.’” The Federal Circuit disagreed with LG’s interpretation of FRAP 4 when applied to an interlocutory appeal under § 1292(c)(2)
“[W]hen FRAP 4(a)(4) pertains to interlocutory appeals under § 1292(c)(2), the enumerated motions can only toll the time to appeal if they relate to the interlocutory judgment such that the judgment is not final except for an accounting until the court disposes of the motions.”
LG also contended that FRAP 4(a)(4) requires that the timeframe for an interlocutory appeal must be tolled even for motions unrelated to the judgment being appealed. The Federal Circuit disagreed with LG’s contention, noting “a timely motion will toll the time for appeal even though the judgment being appealed will not be altered[, b]ut it does not suggest that a motion need not relate to the judgment appealed from.” In other words:
“When only motions unrelated to the judgment being appealed remain, the judgment is final except for an accounting and the time to file an interlocutory appeal begins.”
In this case, FRAP 4(a)(4) did not toll the time for the post-trial motion related to liability, and LG was precluded from appealing the district court’s determination of liability under §1292. Practitioners should be aware of this limitation, and ensure that any decisions addressing all issues of liability are promptly appealed — even if other issues remain to be decided.