Case: 23-1758 Document: 16 Page: 1 Filed: 06/08/2023
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WSOU INVESTMENTS LLC, dba Brazos Licensing
and Development,
Plaintiff-Appellant
v.
DELL TECHNOLOGIES INC., DELL, INC., EMC
CORPORATION, VMWARE, INC.,
Defendants-Appellees
______________________
2023-1758
______________________
Appeal from the United States District Court for the
Western District of Texas in No. 6:20-cv-00480-ADA-DTG,
Judge Alan D. Albright.
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WSOU INVESTMENTS LLC, dba Brazos Licensing
and Development,
Plaintiff-Appellant
v.
DELL TECHNOLOGIES INC., DELL, INC., EMC
CORPORATION, VMWARE, INC.,
Defendants-Appellees
______________________
Case: 23-1758 Document: 16 Page: 2 Filed: 06/08/2023
2 WSOU INVESTMENTS LLC v. DELL TECHNOLOGIES INC.
2023-1759
______________________
Appeal from the United States District Court for the
Western District of Texas in No. 6:20-cv-00481-ADA-DTG,
Judge Alan D. Albright.
-------------------------------------------------
WSOU INVESTMENTS LLC, dba Brazos Licensing
and Development,
Plaintiff-Appellant
v.
DELL TECHNOLOGIES INC., DELL, INC., EMC
CORPORATION, VMWARE, INC.,
Defendants-Appellees
______________________
2023-1761
______________________
Appeal from the United States District Court for the
Western District of Texas in No. 6:20-cv-00486-ADA-DTG,
Judge Alan D. Albright.
______________________
ON MOTION
______________________
Before PROST, REYNA, and STARK, Circuit Judges.
PER CURIAM.
ORDER
Dell Technologies Inc., Dell, Inc., EMC Corp., and
VMware, Inc. (collectively, “Dell”) move to dismiss the
above-captioned appeals as premature. WSOU
Case: 23-1758 Document: 16 Page: 3 Filed: 06/08/2023
WSOU INVESTMENTS LLC v. DELL TECHNOLOGIES INC. 3
Investments LLC (“WSOU”) opposes, or, in the alternative,
requests deactivation. For the following reasons, we dis-
miss Appeal No. 2023-1758 and deactivate Appeal
Nos. 2023-1759 and 2023-1761. 1
WSOU filed the above-captioned cases alleging patent
infringement of three patents: U.S. Patent Nos. 9,164,800;
7,092,360; and 7,539,133. The district court consolidated
the cases, which ultimately went to trial. On Febru-
ary 21, 2023, the district court held a hearing concerning
the ’800 and ’360 patent cases and announced from the
bench that it was granting appellees’ motion “under
Rule 56 . . . for judgment as a matter of law that there is no
direct infringement” and “that there are no damages for
those two [patents].” Appeal No. 2023-1758, ECF No. 4-2
at 7–10 (Tr. 130:25–133:22).
Two days later, on February 23, 2023, the district court
held a hearing for the ’133 patent case. At the hearing,
appellees made an oral “Rule 50(a) motion” focused on non-
infringement, which the district court granted. Appeal
No. 2023-1758, ECF No. 4-3 at 7–8 (Tr. 679:24–680:13;
722:10–20). The court then noted that it would prepare a
written order after the parties filed their written submis-
sions regarding the motion. Id. at 50 (Tr. 722:10–21). The
court had also noted that it would “take [defendants’
35
U.S.C. § 101 argument] up at the end of trial.”
Id. at 12
(Tr. 684:14–21). WSOU filed a notice of appeal for each
case.
1 “[C]onstituent cases retain their separate identi-
ties at least to the extent that a final decision in one is im-
mediately appealable by the losing party,” so we assess the
finality of the district court’s decision for each of the con-
solidated cases individually. Hall v. Hall,
138 S. Ct. 1118,
1131 (2018).
Case: 23-1758 Document: 16 Page: 4 Filed: 06/08/2023
4 WSOU INVESTMENTS LLC v. DELL TECHNOLOGIES INC.
In general, we only have jurisdiction to review a “final
decision of a district court.”
28 U.S.C. § 1295(a)(1); see
FirsTier Mortg. Co. v. Invs. Mortg. Ins. Co.,
498 U.S. 269,
273–74 (1991) (“For a ruling to be final, it must end the
litigation on the merits, and the judge must clearly declare
his intention in this respect.” (cleaned up)). Here, the par-
ties appear to agree that issues remain for the district court
to resolve in each case such that there is no final decision
in any of the cases. See Appeal No. 2023-1758, ECF No. 4-
1 at 6 (noting no “final ruling on the dispositive motions”
has been entered), ECF No. 1-2 at 2–3 (noting anticipated
“forthcoming order[s]” addressing the merits in each case).
But that does not completely resolve the matter.
Even where there is no final decision, federal courts
have long recognized that a premature notice of appeal can
become effective under certain circumstances. See Buffkin
v. Dep’t of Def.,
957 F.3d 1327, 1333 (Fed. Cir. 2020). For
example, under Federal Rule of Appellate Proce-
dure 4(a)(2), “[a] notice of appeal filed after the court an-
nounces a decision . . . is treated as filed on the date of and
after the entry” of final judgment. That rule “only [applies,
however,] when a district court announces a decision that
would be appealable if immediately followed by the entry
of judgment,” FirsTier,
498 U.S. at 276 (emphasis in origi-
nal). 2
Rule 4(a)(2) cannot save WSOU’s appeal in the ’133 pa-
tent case from being dismissed because the district court
clearly indicated that its bench ruling did not end the
2 Although the Supreme Court did not address “the
operation of the Rule when the jurisdiction of the court of
appeals is founded on a statute other than [28 U.S.C.]
§ 1291,” FirsTier,
498 U.S. at 274 n.4, we have applied the
Court’s holding to analogous district court appeals under
28 U.S.C. § 1295(a)(1), see PODS, Inc. v. Porta Stor, Inc.,
484 F.3d 1359, 1366 (Fed. Cir. 2007).
Case: 23-1758 Document: 16 Page: 5 Filed: 06/08/2023
WSOU INVESTMENTS LLC v. DELL TECHNOLOGIES INC. 5
court’s involvement with the merits of the case—the par-
ties were directed to file written submissions regarding
Dell’s motion and the court expressly noted that it had not
yet resolved the § 101 issue. Thus, it was unreasonable for
WSOU to understand the court’s bench ruling to be an im-
mediately appealable final decision and WSOU provides no
persuasive argument for us to deactivate, rather than dis-
miss, such a clearly premature appeal. See Dieser v. Cont’l
Cas. Co.,
440 F.3d 920, 924 (8th Cir. 2006) (finding unre-
solved issues at the time of appeal defeated application of
Rule 4(a)(2)).
However, we reach a different conclusion about the dis-
trict court’s bench ruling in the ’800 and ’360 patent cases.
The record of that ruling and the parties’ submissions pro-
vided to this court indicate ambiguity as to whether the
district court thought there was anything left for it to do
other than enter final judgment in those cases. See Appeal
No. 2023-1758, ECF No. 4-2 at 5–10 (Tr. 129:23–130:15;
128:19–133:21). The parties appear to now agree that no
final decision has been entered and that these appeals are
premature, but WSOU’s decision to immediately appeal
from the district court’s bench ruling in those cases was not
so unreasonable as to bar application of Rule 4(a)(2). See
FirsTier,
498 U.S. at 277 (“Under such circumstances, [ap-
pellant’s] belief in the finality of the January 26 bench rul-
ing was reasonable, and its premature February 8 notice
therefore should be treated as an effective notice of appeal
from the judgment entered on March 3.”).
Accordingly,
Case: 23-1758 Document: 16 Page: 6 Filed: 06/08/2023
6 WSOU INVESTMENTS LLC v. DELL TECHNOLOGIES INC.
IT IS ORDERED THAT:
(1) The motions are granted to the following extent.
Appeal Nos. 2023-1759 and 2023-1761 are deactivated.
Within 30 days from the date of entry of final judgment,
the parties are directed to inform the court how they think
those appeals should proceed.
(2) Appeal No. 2023-1758 is dismissed for lack of juris-
diction. Each party shall bear its own costs with respect to
Appeal No. 2023-1758.
FOR THE COURT
June 8, 2023 /s/ Jarrett B. Perlow
Date Jarrett B. Perlow
Acting Clerk of Court
ISSUED AS A MANDATE (Appeal No. 2023-1758 only):
June 8, 2023
