Phil-Insul Corp. v. Reward Wall Systems, Inc. et al
MEMORANDUM AND ORDER - Counts I, II, III and IV of Plaintiff's complaint are dismissed with prejudice, and that Plaintiff takes nothing from Defendants. The Court grants the motion 255 of Plaintiff for certification and the parties' st ipulated request for a Rule 54(b) certification for immediate appeal of the final judgment dismissing Counts I, II, III and IV of Plaintiff's complaint on the grounds of non-infringement. All other claims, counterclaims and any other matters pending before the Court, including but not limited to discovery and any motions for attorneys fees and taxation of costs, are hereby stayed. Ordered by Judge Joseph F. Bataillon. (GJG)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PHIL-INSUL CORP. d/b/a INTEGRASPEC
REWARD WALL SYSTEMS, INC.,
BUILDBLOCK BUILDING SYSTEMS, LLC,
POLYFORM, A.G.P., INC. and
FOR CERTIFICATION OF FINAL JUDGMENT
PURSUANT TO FED. R. CIV. P. 54(b)
This litigation concerns the alleged infringement of United States Patent No.
5,428,933 (the ‘933 patent) by Defendants: Amvic Corporation (“Amvic”), BuildBlock Building
Systems, LLC (“BuildBlock”), Nudura Corporation and Polyform A.G.P., Inc. (collectively
“Polyform”) and Reward Wall Systems, Inc. (“Reward Wall”).
This Court in its Memorandum and Order on November 26, 2012 (Filing No. 215)
and Memorandum and Order on September 5, 2013 (Filing No. 253) dismissed Counts I-IV of
Plaintiff’s Complaint (each Count alleging infringement by one of the four defendants) for
infringement of the ‘933 patent because none of the accused instrumentalities of any of the
Defendants infringes any asserted claim of that patent.
On May 29, 2013, the Court denied Defendant Polyform’s Motion for Sanctions
under Rule 11. (Filing No. 250)
The parties have stipulated to jointly request certification of the Orders under Fed.
R. Civ. P. 54(b) for immediate appeal that are final as to Counts I-IV of the Complaint.
The parties further stipulated to request the Court to stay all other claims,
counterclaims, any requests for attorney fees under 35 U.S.C. §285 and any other matters now
pending before the Court until resolution by the Federal Circuit Court of Appeals of the certified
The Court, based on the finality of the claim for infringement, and the finding that
there is no just reason for delay of the appeal based on:
(a) the separability of the claim for infringement of Plaintiff and the
counterclaims of Defendants;
(b) the unlikelihood that the need for review might be mooted by future
developments in this Court;
(c ) the unlikelihood that the Federal Circuit Court of Appeals might be obliged
to consider the same issue a second time;
(d) the lack of any counterclaim in the nature of setoff; and
(e) the burden on the use of judicial resources by trying the case based on the
present claim construction to a final judgment terminating the entire proceeding
subject to an appeal and the expeditiousness of trying all claims and
IT IS HEREBY ORDERED AND ADJUDGED that:
(1) Counts I, II, III and IV of Plaintiff’s complaint are dismissed with prejudice, and that
Plaintiff takes nothing from Defendants;
(2) the Court grants the motion of Plaintiff for certification and the parties’ stipulated
request for a Rule 54(b) certification for immediate appeal of the final judgment dismissing
Counts I, II, III and IV of Plaintiff’s complaint on the grounds of non-infringement; and
(3) all other claims, counterclaims and any other matters pending before the Court,
including but not limited to discovery and any motions for attorneys fees and taxation of costs,
are hereby stayed.
Dated: October 9, 2013
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge
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