HEALTHESTATE LLC v. ASM LLC (2020)

United States Court of Appeals, Federal Circuit.

HEALTHESTATE, LLC, Plaintiff-Respondent v. UNITED STATES, Defendant ASM Research, LLC, Defendant-Petitioner

2020-137

Decided: September 29, 2020

Before NEWMAN, LOURIE, and HUGHES, Circuit Judges. Bryant Steven Banes, Attorney, Sean D. Forbes, Sarah P. Harris, Neel, Hooper & Banes, Houston, TX, for Plaintiff-Respondent Alex Hanna, Trial Attorney, Scott David Bolden, Gary Lee Hausken, Director, Department of Justice, Commercial Litigation Branch, Civil Division, Washington, DC, for Defendant Ranganath Sudarshan, Esq., Attorney, Beth S. Brinkmann, Esq., Benjamin Louis Baer Cavataro, Covington & Burling LLP, Washington, DC, for Defendant-Petitioner

ON PETITION

ORDER

ASM Research, LLC petitions for permission to appeal pursuant to 28 U.S.C. § 1292(d)(2) from the interlocutory order denying its motion to dismiss certified by the United States Court of Federal Claims. HEALTHeSTATE, LLC (“HeS”) opposes the petition. The United States submits a brief amicus curiae in response to this court's August 10, 2020 order. ASM moves for leave to file a reply in support of its petition and a response to the United States’ brief, each of which HeS opposes.

Under the express language of § 1292(d)(2), this court has “discretion” whether to “permit an appeal” under the provision. See Digit. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 883 n.9, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (noting “broad” discretion under the similar provision of 28 U.S.C. § 1292(b) for interlocutory appeals from United States district courts). Having considered the matter, we decline to permit interlocutory review here.

Accordingly,

It Is Ordered That:

(1) The petition for permission to appeal is denied.

(2) The motion for leave to file a reply is granted. The reply, ECF No. 18-2, is accepted for filing.

(3) The motion for leave to file a response to the United States’ brief is granted. The response, ECF No. 25-2, is accepted for filing.

PER CURIAM.