NOTE: This order is nonprecedential
United States Court of Appeals
for the FederaI Circuit
RITZ CAMERA & IMAGE, LLC,
Plaintiff-Respondent, 1
V.
SANDISK CORPORATION,
Defendant-Petiti0ner.
Miscellaneous DoCket No. 101 .
On Petition for Permission to Appeal pursuant to 28
U.S.C. § 1292(b) from the United States District Court for
the Northern District of Calif0rnia in case no. 10-CV-
2787, Judge Jeremy Fogel. _
ON PETITION FOR PERMISSION TO APPEAL
Before NEWMAN, LINN, and REYNA, Circuit Judges.
LINN, Circuit Judge.
ORDER
SanDisk Corporation petitions for permission to ap-
peal an order certified by the United States District Court
for the N0rthern District of California as one involving a
controlling question of law as to whether direct purchas-

RITZ CAMERA V. SANDlSK CORP 2
ers of patented products may bring a WaIker Process
antitrust claim challenging a patent’s validity with no
threat of an infringement suit. Ritz Camera & lmage,
LLC opposes. SanDisk replies.
Ritz Camera filed this lawsuit against SanDisk, alleg-
ing antitrust violations under the Sherrnan Act based on
SanDisk’s alleged intentional failures to disclose material
prior art and misrepresentations to the Patent Office.
SanDisk moved to dismiss the complaint in the district
court on the grounds that, inter alia, Ritz Camera, as a
direct purchaser, did not have standing to bring suit.
The district court held that Ritz Camera did have
standing to sue. The court explained that “the Supreme
Court decision in Walker Process places no limitation on
the class of plaintiffs eligible to bring a Walfzer Process
claim[.]" The district court further noted that while other
courts have held that consumers lack standing to assert a
Walker Process claim unless the patent at issue was
already determined to be unenforceable, and here the
patent-at-issue has not been adjudged unenforceable, the
fact that the Walker Process claims survived a motion for
summary judgment in a previous case "raise[s] at least
some question as to the validity of the subject patent."
After denying SanDisk’s motion to dismiss for lack of
standing the court granted SanDisk’s request to certify
its order, as it relates to standing, for permissive appeal.
Section 1292(b) establishes three criteria for certifica-
tion. The district court must be of the opinion that: (1)
the order involves a controlling question of law; (2) there
is a substantial ground for difference of opinion; and (3)
certification will materially advance the ultimate termi-
nation of the litigation Ultimately, this court must
exercise its own discretion in deciding whether it will

3 RlTZ CAMERA V. SANDlSK CORP
grant permission to appeal interlocutory orders certified
by a trial court. See In re Conuertible Rowing Exerciser
Patent Litigation, 903 F.2d 822 (Fed.Cir.1990). This court
determines that granting the petition in these circum-
stances is warranted
This court notes that Ritz Camera argues that this
court does not have jurisdiction to hear the permissive
appeal because the right to relief does not "necessarily
depend on resolution of a substantial question of federal
patent law.” Christian,son v. C'0lt Indus. Operating Corp.,
486 U.S. 800 (1988). This court deems it the better course
to defer the jurisdictional issue raised by the parties to
the merits panel. `
Accordingly,
lT IS ORDERED THATZ _
The petition for permission to appeal is granted.
FoR THE CoURT
 1 3  /sf Jan Horbaly
Date J an Horb aly
Clerk
cc: Joseph S. Hall, Esq.
David W. Hansen, Esq.
Clerk, United States District Court For The Northern
District Of California
s24
FlLED
U.S. COURT 0F APFEALS FDH
THE FEDERAL ClRCUlT
JAN 132U1Z
JAN HORBAlY
Ei.EBK

