                      NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                   2008-1104

               ARMAMENT SYSTEMS AND PROCEDURES, INC.,

                                            Plaintiff-Appellant,

                                       v.

     IQ HONG KONG LIMITED, ZEN DESIGN GROUP LIMITED, and SUN YU,

                                            Defendants-Appellees,

                                      and

EMISSIVE ENERGY CORP., VECTOR PRODUCTS, INC. (doing business as Vector
Manufacturing Ltd.), GENERAL PARTS, INC. (doing business as Carquest Auto Parts
     of West Allis Wisconsin), CARQUEST MANAGEMENT SERVICES, INC.,
        MILLS FLEET FARM, INC., NORTHLAND FISHING TACKLE, INC.,
   TARGET CORPORATION, and TEAM PRODUCTS INTERNATIONAL, INC.,

                                            Defendants-Appellees,


                                      and

               JSA, INC. (doing business as Excell Marketing LLC),

                                            Defendant-Appellee,

                                      and

                  HARRIET CARTER GIFTS INCORPORATED
                    and BANDWAGON INCORPORATED,

                                            Defendants-Appellees,

                                      and

                          C CRANE COMPANY, INC.,

                                            Defendant-Appellee.
         Appeal from the United States District Court for the Eastern District of
           Wisconsin in case no. 00-CV-1257, Judge William C. Griesbach.

                                      ON MOTION

Before PROST, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and MOORE, Circuit
Judge.

PROST, Circuit Judge.

                                       ORDER

       IQ Hong Kong Limited et al. (IQHK) and Emissive Energy Corp. et al. (Emissive)

move to dismiss Armament Systems and Procedures, Inc.’s (ASP) appeal of the July

24, 2007 and October 12, 2007 orders of the United States District Court for the District

of Connecticut in Armament Sys. and Procedures, Inc. v. IQ Hong Kong Ltd., No. 00-

CV-1257. ASP opposes. IQHK and Emissive reply.

       In the district court, ASP filed four actions. Armament Sys. and Procedures, Inc.

v. IQ Hong Kong Ltd., No. 00-CV-1257, Armament Sys. and Procedures, Inc. v.

Emissive Energy Corp., No. 01-CV-179, Armament Sys. and Procedures, Inc. v. Vector

Prods., Inc., No. 01-CV-1122, and Armament Sys. and Procedures, Inc. v. Target Corp.,

No. 03-CV-937.     The district court consolidated these cases for purposes of claim

construction and challenges to validity. After conducting a bench trial, the district court

issued a memorandum decision and order stating that ASP’s patent is unenforceable.

The district court also dismissed ASP’s infringement claims. Subsequently, ASP and

IQHK filed a stipulation of dismissal with respect to ASP’s trademark claims.          On

October 5, 2007, Emissive filed a motion to amend or correct its counterclaims seeking

to dismiss its unfair competition counterclaims.     The district court took note of this




2008-1104                                   2
submission in its October 12, 2007 order denying ASP’s motion for a new trial, but has

not entered an order explicitly dismissing those counterclaims.

       IQHK and Emissive state that these cases involved claims by ASP of patent

infringement, trade dress infringement, trademark infringement, trademark dilution,

unfair competition against the various defendants. IQHK and Emissive state that in 00-

1257, IQHK filed counterclaims seeking declarations that the patent is invalid and/or not

infringed and unenforceable.        In 01-179, Emissive filed counterclaims seeking

declarations that the patent is invalid and unenforceable, and sought damages for unfair

competition.    In 01-1122, Vector Products, Inc. asserted counterclaims seeking

declarations that the patent is invalid, unenforceable, and not infringed.

       IQHK and Emissive contend that there are pending claims and counterclaims

before the district court and thus the appeal is premature. ASP concedes that it filed its

notice of appeal before all claims and counterclaims were adjudicated; however, ASP

states that the trademark claims and unfair competition counterclaims have since “been

disposed of as a practical matter.” ASP requests that this court remand to the district

court for entry of final judgment pursuant to Fed. R. Civ. P. 58.

       Even if ASP is correct that the district court has disposed of the trademark claims

and Emissive’s unfair competition counterclaims, which we do not decide, there are still

several claims and counterclaims pending before the district court. The district court

has not entered judgment with respect to the invalidity counterclaims filed by IQHK,

Emissive and Vector and the noninfringement counterclaims filed by IQHK and Vector.

In addition, ASP’s trade dress and unfair competition claims are still pending before the

district court. Because there are pending claims and counterclaims, there is no final




2008-1104                                   3
judgment and this appeal is premature. See Pause Technology, LLC v. Tivo Inc., 401

F.3d 1290, 1294 (Fed. Cir. 2005) (stating that “a pending counterclaim precludes

jurisdiction absent certification under Rule 54(b)”); Nystrom v. Trex Co., 339 F.3d 1347,

1350 (Fed. Cir. 2003) (“If a case is not fully adjudicated as to all claims for all parties

and there is no express determination that there is no just reason for delay or express

direction for entry of judgment as to fewer than all of the parties or claims, there is no

final decision under 28 U.S.C. § 1295 (a)(1) and therefore no jurisdiction”). Thus, we

dismiss. ASP may, of course, file a notice of appeal after the district court disposes of

the pending claims and counterclaims and enters final judgment.

       Accordingly,

       IT IS ORDERED THAT:

       (1)    The motion to dismiss is granted.

       (2)    Each side shall bear its own costs.

       (3)    The revised official caption is reflected above.

                                                  FOR THE COURT



      March 7, 2008                               /s/ Sharon Prost
          Date                                    Sharon Prost
                                                  Circuit Judge

cc:   Steven E. Feldman, Esq.
      Maurice E. Gauthier, Esq.
      Mark R. Kramer, Esq.
      Jonathan H. Margolies, Esq.
      Mark A. Cantor, Esq.
      John R. Petitjean, Esq.

s17

ISSUED AS A MANDATE:              March 7, 2008



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