Halo Electronics, Inc. v. Pulse Electronics, Inc. , 857 F.3d 1347 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
HALO ELECTRONICS, INC.,
Plaintiff-Appellee
v.
PULSE ELECTRONICS, INC., FKA PULSE
ENGINEERING, INC., PULSE ELECTRONICS
CORPORATION, FKA TECHNITROL, INC.,
Defendants-Appellants
______________________
2016-2006
______________________
Appeal from the United States District Court for the
District of Nevada in No. 2:07-cv-00331-APG-PAL, Judge
Andrew P. Gordon.
______________________
Decided: May 26, 2017
______________________
CRAIG E. COUNTRYMAN, Fish & Richardson, PC, San
Diego, CA, argued for plaintiff-appellee. Also represented
by MICHAEL J. KANE, WILLIAM WOODFORD, JOHN A.
DRAGSETH, Minneapolis, MN.
MARK LEE HOGGE, Dentons US LLP, Washington, DC,
argued for defendants-appellants. Also represented by
SHAILENDRA K. MAHESHWARI, RAJESH CHARLES NORONHA,
NICHOLAS HUNT JACKSON.
______________________
2 HALO ELECTRONICS, INC. v. PULSE ELECTRONICS, INC.
Before LOURIE, MOORE, and HUGHES, Circuit Judges.
LOURIE, Circuit Judge.
Pulse Electronics, Inc. and Pulse Electronics Corpora-
tion (together, “Pulse”) appeal from the decision of the
United States District Court for the District of Nevada
awarding Halo Electronics, Inc. (“Halo”) prejudgment
interest. See Halo Elecs., Inc. v. Pulse Elecs., Inc., No.
2:07-cv-00331-APG-PAL, slip op. (D. Nev. Apr. 6, 2016)
(Joint Appendix “J.A.” 1–2). Because we lack jurisdiction,
we dismiss.
BACKGROUND
Halo owns U.S. Patents 5,656,985, 6,297,720, and
6,344,785 (collectively, the “Halo patents”). In 2007, Halo
sued Pulse for patent infringement. Pulse denied in-
fringement and challenged the validity of the Halo pa-
tents. Pulse also filed a counterclaim not relevant to the
issues in this appeal. Following trial, the jury found that:
(1) Pulse directly infringed the Halo patents with prod-
ucts that it shipped into the United States; (2) Pulse
induced others to infringe the Halo patents with products
that it delivered outside the United States but ultimately
were imported into the United States in finished end
products; (3) it was highly probable that Pulse’s infringe-
ment was willful; and (4) the asserted claims of the Halo
patents were not invalid for obviousness. The jury
awarded Halo $1.5 million in reasonable royalty damages.
On May 28, 2013, after the conclusion of post-trial
briefing, the district court held, inter alia, that Pulse had
not willfully infringed Halo’s patents and entered judg-
ment in favor of Halo in the amount of $1.5 million. Halo
subsequently filed a bill of costs and the court taxed costs
in the amount of $51,087.24. Halo did not file a motion
for pre- or post-judgment interest in 2013.
HALO ELECTRONICS, INC. v. PULSE ELECTRONICS, INC. 3
Both parties appealed various aspects of the disposi-
tion to this court. Relevant here, Halo appealed from the
district court’s conclusion that Pulse’s infringement was
not willful and attendant failure to enhance damages, and
this court affirmed. See Halo Elecs., Inc. v. Pulse Elecs.,
Inc., 769 F.3d 1371, 1381–83 (Fed. Cir. 2014), vacated and
remanded, 136 S. Ct. 1923 (2016). The parties asserted
that this court had jurisdiction over the appeal pursuant
to 28 U.S.C. § 1295(a)(1). In its opening brief, Halo char-
acterized the May 28, 2013 judgment as a “final judg-
ment.” J.A. 5017. On March 30, 2015, this court’s
mandate issued (“Original Mandate”).
On June 9, 2015, Halo filed a motion in the district
court seeking, inter alia, an accounting for supplemental
damages and an award of pre- and post-judgment inter-
est. Pulse filed an opposition to Halo’s motion contesting,
inter alia, the timeliness of Halo’s motion for prejudgment
interest.
On October 19, 2015, the Supreme Court granted, in
part, Halo’s petition for a writ of certiorari, limiting its
review to the question relating to enhanced damages.
Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 356
(2015). The Supreme Court subsequently held that the
enhanced damages test applied by this court was incon-
sistent with 35 U.S.C. § 284, and vacated and remanded
to this court for proceedings consistent with its opinion.
Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923,
1935–36 (2016). On remand, this court recalled the
Original Mandate on July 14, 2016. We then vacated the
district court’s unenhanced damages award with respect
to products that were delivered in the United States,
remanded for proceedings consistent with the Supreme
Court’s opinion on enhanced damages, and reaffirmed its
prior opinion in all other respects. Halo Elecs., Inc. v.
Pulse Elecs., Inc., 831 F.3d 1369, 1373 (Fed. Cir. 2016).
On September 12, 2016, this court’s mandate issued
(“Remand Mandate”).
4 HALO ELECTRONICS, INC. v. PULSE ELECTRONICS, INC.
On April 6, 2016, prior to the Original Mandate being
recalled, the district court awarded Halo (1) prejudgment
interest “at the rate set forth in Nev. Rev. Stat. § 17.130,
compounded annually, through May 28, 2013”; (2) post-
judgment interest; and (3) supplemental damages for
direct infringement. J.A. 1. The court did not set the
amount of total prejudgment interest or the date from
which to begin calculating such interest. Rather, it or-
dered Halo to prepare an updated calculation of the pre-
and post-judgment interest amounts through the date of
the court’s order, and the parties to submit briefing on the
issue of pre- and post-judgment interest if they could not
stipulate to the total amount of interest. The court also
ordered Pulse to produce financial data to Halo to assess
supplemental inducement damages.
On April 27, 2016, the parties submitted briefing dis-
puting the amount of pre- and post-judgment interest and
the correct date from which to start assessing prejudg-
ment interest. Halo contended that prejudgment interest
on the entire $1.5 million jury award of damages began to
accrue on the date that the complaint and summons were
served, March 20, 2007. Pulse responded that Halo had
not suffered $1.5 million of damages at the beginning of
the damages period and thus was not entitled to compen-
sation in that amount of damages as of the date of filing of
the complaint. Pulse asserted that the calculation of
prejudgment interest needed to account for the fact that
Pulse’s activities that were found to infringe occurred
throughout the damages period.
On May 5, 2016, Pulse noticed this appeal of the dis-
trict court’s April 6, 2016 order. At that time, the parties’
dispute regarding the appropriate calculation of prejudg-
ment interest had not been resolved. During the Septem-
ber 27, 2016 status conference, the district court and the
parties recognized that the court had not ruled on the
outstanding interest calculation. Counsel for Pulse indi-
cated that it would prefer that the district court wait to
HALO ELECTRONICS, INC. v. PULSE ELECTRONICS, INC. 5
rule on the outstanding prejudgment interest dispute
until after this court addressed prejudgment interest in
the instant appeal.
On November 21, 2016, the court entered a stipula-
tion of satisfaction of judgment for the $1.5 million dam-
ages award, including costs, supplemental damages, and
post-judgment interest. The stipulation expressly exclud-
ed prejudgment interest, enhanced damages, and attorney
fees. As of the oral argument on April 5, 2017, those
issues remained unresolved by the district court.
DISCUSSION
We must first address whether we have jurisdiction. 1
Pursuant to 28 U.S.C. § 1295(a)(1), which embodies the
final judgment rule, our jurisdiction is limited to an
appeal from a “final decision” of a district court. 28 U.S.C.
§ 1295(a)(1). The Supreme Court has stated that a final
decision “generally is one which ends the litigation on the
merits and leaves nothing for the court to do but execute
the judgment.” Catlin v. United States, 324 U.S. 229, 233
(1945); see also Van Cauwenberghe v. Biard, 486 U.S. 517,
521–22 (1988). In other words, “[i]f a ‘case is not fully
1 “We have an obligation to assure ourselves of our
jurisdiction before considering the merits of an appeal.”
PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.
Cir. 2007) (citing Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 94–95 (1998)). Accordingly, we take judicial
notice of district court docket entries entered after the
filing of the notice of appeal that relate to whether we
have jurisdiction over this appeal. The relevant docket
entries are “not subject to reasonable dispute because”
they “can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.”
Fed. R. Evid. 201(b); see also Function Media, L.L.C. v.
Google, Inc., 708 F.3d 1310, 1316 n.4 (Fed. Cir. 2013).
6 HALO ELECTRONICS, INC. v. PULSE ELECTRONICS, INC.
adjudicated as to all claims for all parties,’ there is no
‘final decision’ and therefore no jurisdiction.” Pandrol
USA, LP v. Airboss Ry. Prods., Inc., 320 F.3d 1354, 1362
(Fed. Cir. 2003) (quoting Syntex Pharm. Int’l, Ltd. v. K–
Line Pharm., Ltd., 905 F.2d 1525, 1526 (Fed. Cir. 1990)).
The Supreme Court has explained that “a final judgment
for money must, at least, determine, or specify the means
for determining, the amount . . . .” United States v. F. &
M. Schaefer Brewing Co., 356 U.S. 227, 233 (1958). The
final judgment rule “serves a number of important pur-
poses,” including avoiding “piecemeal appeals” and “pro-
moting efficient judicial administration.” Firestone Tire &
Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981).
28 U.S.C. § 1292(c)(2) is an exception to the final
judgment rule. Pursuant to § 1292(c)(2) we have jurisdic-
tion over “an appeal from a judgment in a civil action for
patent infringement which would otherwise be appealable
to [this court] and is final except for an accounting.”
(emphasis added). We have held that § 1292(c)(2) “con-
fer[s] jurisdiction on this court to entertain appeals from
patent infringement liability determinations when a trial
on damages has not yet occurred . . . [and] when willful-
ness issues are outstanding and remain undecided.”
Robert Bosch, LLC v. Pylon Mfg. Corp., 719 F.3d 1305,
1320 (Fed. Cir. 2013) (en banc). 2
Halo argues that this court lacks jurisdiction because
(1) the April 6, 2016 order is not a final decision appeala-
ble under 28 U.S.C. § 1295(a)(1); and (2) this is not a
proper interlocutory appeal pursuant to 28 U.S.C.
2 Although it is our practice to follow precedent of
the regional circuits on issues not unique to our areas of
exclusive jurisdiction, we have adopted our own precedent
on matters relating to our own appellate jurisdiction. See
Woodard v. Sage Prods., Inc., 818 F.2d 841, 844 (Fed. Cir.
1987) (en banc).
HALO ELECTRONICS, INC. v. PULSE ELECTRONICS, INC. 7
§ 1292(c)(2). Halo additionally contends that the appeal is
improper because the district court did not issue a sepa-
rate judgment as required by Federal Rule of Civil Proce-
dure (“Rule”) 58. Halo further asserts that dismissal of
this appeal will simplify the case and conserve judicial
resources because the district court has several issues
pending before it.
Pulse responds that we have jurisdiction pursuant to
§ 1295(a)(1) because the May 28, 2013 judgment was a
final decision or, alternatively, under § 1292(c)(2) because
the decision is final except for an accounting. Pulse
contends that the prejudgment interest awarded by the
district court is “final” and that further proceedings
relating to this court’s Remand Mandate would be “no
more than ‘an accounting.’” Appellants’ Reply Br. 9
(quoting Robert Bosch, 719 F.3d at 1319). Pulse asserts
that a separate judgment is not required in this appeal
under Rule 58(a)(4) because Halo’s motion is substantive-
ly an untimely Rule 59(e) motion.
We agree with Halo that we lack jurisdiction over the
instant appeal. As an initial matter, whether the prior
appeal from the May 28, 2013 judgment was properly
taken pursuant to § 1295(a)(1) is not dispositive of wheth-
er we have jurisdiction in this appeal. See Pandrol, 320
F.3d at 1362 (noting that “the first appeal to this court
was from a final judgment” and analyzing whether the
court had jurisdiction over the subsequent appeal at
issue). Accordingly, we assess whether the appealed-from
decision satisfies the requirements of either § 1295(a)(1)
or § 1292(c)(2).
We first address whether the April 6, 2016 order was
a final decision. That order required the parties to either
file a stipulation as to the amount of interest due or, “[i]f
they disagree[d] on the calculation” of interest, to “file a
brief . . . explaining their respective positions.” J.A. 1–2.
The parties disagreed with each other and filed briefs
8 HALO ELECTRONICS, INC. v. PULSE ELECTRONICS, INC.
contesting the appropriate amount of prejudgment inter-
est and how to calculate it, particularly disputing the date
from which to begin assessing prejudgment interest. The
district court never resolved the parties’ dispute regarding
the date from which to begin calculating prejudgment
interest or set the amount of prejudgment interest to be
awarded to Halo. 3 Oral Argument at 2:30–3:07, 10:30–
11:07, Halo Elecs., Inc. v. Pulse Elecs., Inc., No. 16-2006
(Fed. Cir. Apr. 5, 2017), http://oralarguments.cafc.us-
courts.gov/default.aspx?fl=2016-2006.mp3; Transcript of
Hearing at 4:20–8:7, 9:17–10:4, Halo Elecs., Inc. v. Pulse
Elecs., Inc., No. 2:07-cv-00331-APG-PAL (D. Nev. Sept.
27, 2016), ECF No. 619; Halo’s Interest Calculation
Requested by the Court’s April 6, 2016, Halo Elecs., Inc. v.
Pulse Elecs., Inc., No. 2:07-cv-00331-APG-PAL (D. Nev.
Apr. 27, 2016), ECF No. 592; Brief of Pulse Electronics,
Inc. and Pulse Electronics Corp. Regarding Calculation of
Damages, Halo Elecs., Inc. v. Pulse Elecs., Inc., No. 2:07-
cv-00331-APG-PAL (D. Nev. Apr. 27, 2016), ECF No. 593.
As a result, there is no final decision because the district
court has not “determine[d], or specif[ied] the means for
determining the amount” of prejudgment interest. F. &
M. Schaefer Brewing, 356 U.S. at 233–34 (holding that a
district court opinion setting the amount of the refund
was not a final judgment where “the action also sought
recovery of interest . . . from the date of payment to the
date of judgment” and the district court’s “opinion does
not state the date or dates of payment and, hence, did not
state facts necessary to compute the amount of interest to
3 Because the calculation of prejudgment interest
remains unresolved, Federal Rule of Appellate Procedure
4(a)(2) does not apply.
HALO ELECTRONICS, INC. v. PULSE ELECTRONICS, INC. 9
be included in the judgment”). 4 We therefore lack juris-
diction under § 1295(a)(1).
For similar reasons, we also lack jurisdiction pursu-
ant to § 1292(c)(2). “As an exception to the final judgment
rule, § 1292(c)(2) is to be interpreted narrowly.” Arlington
Indus., Inc. v. Bridgeport Fittings, Inc., 759 F.3d 1333,
1339 (Fed. Cir. 2014). Regardless whether prejudgment
interest is part of an accounting or not, the award of
prejudgment interest itself in this case is not final. We
have held that § 1292(c)(2) “does not go so far as to permit
us to consider [a] non-final order” that is related to the
accounting. Alfred E. Mann Found. for Sci. Research v.
Cochlear Corp., 841 F.3d 1334, 1347 (Fed. Cir. 2016)
(holding that this court lacked jurisdiction to review a
4 See also Osterneck v. Ernst & Whinney, 489 U.S.
169, 177 (1989) (explaining that it is adopting a rule that
“prevent[s] appellate review before a postjudgment mo-
tion for prejudgment interest is resolved”); Dieser v. Cont’l
Cas. Co., 440 F.3d 920, 924 (8th Cir. 2006) (holding that
an “order [that] indicated that the amount of pre-
judgment interest was yet to be determined” was not a
final judgment); Commercial Union Ins. Co. v. Seven
Provinces Ins. Co., 217 F.3d 33, 37 (1st Cir. 2000) (holding
that there was no final judgment until “the district court
ruled on the question of pre-judgment interest and issued
an amended judgment,” including determining “when pre-
judgment interest began to run”); Transaero, Inc. v. La
Fuerza Aerea Boliviana, 99 F.3d 538, 541 (2d Cir. 1996)
(holding there was no final judgment where “the appro-
priate interest rate and the interest period remain as
disputed issues”); Herzog Contracting Corp. v. McGowen
Corp., 976 F.2d 1062, 1064–65 (7th Cir. 1992) (explaining
that “the original judgment would not have been final
only if it had deferred determination of [prevailing par-
ty’s] entitlement to prejudgment interest”).
10 HALO ELECTRONICS, INC. v. PULSE ELECTRONICS, INC.
district court order granting a motion for a new trial on
damages where there was no final decision on damages);
see also Russell Box Co. v. Grant Paper Box Co., 179 F.2d
785, 787 (1st Cir. 1950) (holding that the court lacked
jurisdiction under a prior version of § 1292(c)(2) where the
order appealed from was “a purely interlocutory one
incidental to the accounting”). Thus, because the order
appealed from is itself non-final, we lack jurisdiction
under § 1292(c)(2).
We note that counsel for Pulse expressed concern at
oral argument about preservation of its right to appeal an
award of prejudgment interest at a later date. Oral
Argument at 4:30–50, 8:20–35, Halo Elecs., Inc. v. Pulse
Elecs., Inc., No. 16-2006 (Fed. Cir. Apr. 5, 2017). As
discussed at oral argument and conceded by Halo, Pulse
has preserved its right to later file a proper appeal con-
cerning a final award of prejudgment interest. Id. at
9:19–10:11, 11:20–13:16.
CONCLUSION
We have considered Pulse’s remaining arguments re-
garding jurisdiction, but conclude that they are without
merit. For the reasons set forth above, we dismiss for
lack of jurisdiction.
DISMISSED
COSTS
No costs.