Fast Memory Erase, LLC v. Intel Corp. , 413 F. App'x 226 ( 2011 )

NOTE: This order is r10nprecedential.
United States Court of Appeals
for the FederaI Circuit
FAST MEMORY ERASE, LLC,
Plaintiff-Appellant,
V.
INTEL CORPORATION, NUMONYX B.V.,
NUMONYX, INC., SONY ERICSSON MOBILE
COMMUNICATIONS AB, SONY ERICSSON
MOBILE COMMUNICATIONS (USA), INC.,
AND APPLE INC.,
Defendants-Appellees,
AND
MOTOROLA, INC.,
Defenclant-AppelZee.
2010-1302
Appea1 from the United Stat;es District C0urt for the
N0rthern District of 'I‘exas in case n0. 10-CV-0481, Judge
Barbara M.G. Lynn.
FAST MEMORY ERASE, LLC,
Plaintiff-Appellee,
V.
FAST MEMORY V. INTEL CORP 2
INTEL CORPORATION, NUMONYX B.V.,
NUMONYX, INC., SONY ERICSSON MOBILE
COMMUNICATIONS AB, SONY ERICSSON
MOBILE COMMUNICATIONS (USA), INC.,
AND APPLE INC.,
Defendants-Appellants,
AND
MOTOROLA, INC.,
Defendant-Appellee.
2010-1324
Appea1 from the United States District Court for the
Northern District of Texas in case no. 10-CV-0481, Judge
Barbara M.G. Lynn.
ON MOTION
Before LoUR1E, FRIEDMAN, and MAYER, Circuit Judges.
LOURIE, Circuit Judge.
0 R D E R
Fast Me1nory Erase, LLC moves to dismiss lntel Cor-
poration et al.'s (Intel) conditional cross-appeal, 2010-
1324. Intel opposes Fast Memory replies.
FaSt Me1nory brought this suit in the United States
DiStrict C0urt for the Northern District of Texas, alleging
inter alia, that Intel infringed U.S. Patent Nos. 6,303,959.
Fo1lowing briefing and a hearing the district court issued
an order construing six terms from claim 1 of the 959
patent, including construing the term “source leakage” to
3 FAST MEMORY V. INTEL CORP
mean "leakage from the source terminal to the substrate
terminal that occurs during source erase."
Conceding that lntel’s accused products did not in-
fringe under the court’s construction of "source leakage,”
Fast Memory joined Intel in stipulating to entry of a
judgment of non-infringement to allow Fast Memory to
appeal. On March 18, 2010, the court entered judgment
based on the parties’ stipulation of non-infringement.
Fast Memory appealed. Intel also filed a cross-appeal
seeking review of the district court’s claim construction of
terms other than “source leakage" if the judgment is
vacated and further proceedings are ordered.
Fast Memory moves to dismiss Intel’s cross-appeal as
imp1‘oper. “It is only necessary and appropriate to file a
cross-appeal when a party seeks to enlarge its own rights
under the judgment or to lessen the rights of its adversary
under the judgment." Bailey 1). Dart Container Corp. of
Michigan, 292 F.3d 136O, 1362 (Fed. Cir. 2002) (citing
United States v. Am. Ry. Express Co., 265 U.S. 425, 435
(1924)).
Here, Intel concedes that its cross-appeal does not in-
volve claim construction rulings implicated by the judg-
ment under review, but is rather an attempt to have this
court rule on claim terms not implicated by the judgment
to govern further proceedings below in the event such
proceedings are required. Such cross-appeals are im-
proper under Bailey. Intel cites Altiris, Inc. u. Sym,antec
Corp., 318 F.3d 1363 (Fed. Cir. 2003), IMS Tech, Inc. v.
Haa5 Automation, Inc., 206 F.3d 1422 (Fed. Cir. 2000),
and Budde v. Harley-Do,vidson, In,c., 250 F.3d 1369 (Fed.
Cir. 2001) in support of its cross-appeal. However, those
decisions did not hold that this court had jurisdiction over
the asserted cross-appeals and thus they do not support
asserting jurisdiction in this case over the cross-appeal
FAST MEMORY V. INTEL CORP 4
Because Inte1’s cross-appeal is improper, we grant the
motion and dismiss Intel may, if appropriate, raise the
issues in its appellee's brief.
Accordingly,
lT lS ORDERED THATZ
(1) The motion to dismiss the cross-appeal is granted
The revised official caption is reflected above.
(2) Each side shall bear its own costs with regard to
the cross-appeal.
FOR THE COURT
JAN 05 2011 /s/ Jan Horbaly
Date J an Horbaly
Clerk
cc: Jeff`rey R. Bragalone, Esq.
Chris R. Ottenweller, Esq.
Russell E. Levine, Esq.
s19 _
Issued As A Mandate (For 2010-1324 Only): 0 5 2lTll
FlLED
u.s. comer 0
mEsnEtFé3%'r§T*°"
JAN 05 2011
.IAN HDRBAL¥
CLERK