Case: 20-105    Document: 17      Page: 1   Filed: 01/30/2020




           NOTE: This order is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

      MLC INTELLECTUAL PROPERTY, LLC,
               Plaintiff-Petitioner

                             v.

            MICRON TECHNOLOGY, INC.,
                Defendant-Respondent
               ______________________

                         2020-105
                  ______________________

   On Petition for Permission to Appeal pursuant to 28
U.S.C. Section 1292(b) from the United States District
Court for the Northern District of California in No. 3:14-cv-
03657-SI, Senior Judge Susan Y. Illston.
                 ______________________

                      ON PETITION
                  ______________________

   Before MOORE, O’MALLEY, and STOLL, Circuit Judges.
PER CURIAM.
                        ORDER
    MLC Intellectual Property, LLC petitions for permis-
sion to appeal interlocutory orders certified by the United
States District Court for the Northern District of Califor-
nia. Micron Technology, Inc., while disagreeing with
Case: 20-105    Document: 17     Page: 2    Filed: 01/30/2020




2   MLC INTELLECTUAL PROPERTY, LLC v. MICRON TECHNOLOGY,
                                                    INC.


MLC’s challenges to the underlying orders, agrees with
MLC that this court should grant review.
    MLC sued Micron for infringement of a patent that has
expired and sought reasonable royalty damages. MLC’s ex-
pert submitted a report proposing a royalty calculation us-
ing a royalty rate he derived from two license agreements
and extrinsic evidence. He multiplied that rate by alterna-
tive royalty bases: either all revenue from the accused
products or all revenue from what the parties agreed was
the smallest salable patent practicing unit (“SSPPU”). Mi-
cron filed pre-trial motions to exclude the testimony.
    The district court issued three separate damages or-
ders, granting Micron’s motions and excluding MLC’s ex-
pert report and testimony. The district court then certified
the three orders for review under 28 U.S.C. § 1292(b),
which authorizes a district court to certify for appeal an
otherwise-unappealable order when it is “of the opinion
that such order involves a controlling question of law as to
which there is substantial ground for difference of opinion
and that an immediate appeal from the order may materi-
ally advance the ultimate termination of the litigation.” 28
U.S.C. § 1292(b). 1
    Section 1292(b) gives this court discretion to exercise
interlocutory review. In re Convertible Rowing Exerciser
Patent Litig., 903 F.2d 822, 822 (Fed. Cir. 1990). Under the
unique circumstances of this case, where the certified dam-
ages orders leave the plaintiff with no damages case to pre-
sent at trial and the district court has concluded that there



    1  In the same certification order, the district court
denied Micron’s motion for summary judgment of no rem-
edy despite noting that it had excluded all of MLC’s expert
evidence because it could not reach the conclusion that it is
undisputed that zero was the only reasonable royalty rate
here.
Case: 20-105     Document: 17      Page: 3    Filed: 01/30/2020




MLC INTELLECTUAL PROPERTY, LLC v. MICRON TECHNOLOGY,               3
INC.


are no available alternative options without section
1292(b) review to otherwise avoid an expensive trial solely
on liability, we agree with the district court and the parties
that review is appropriate.
      Accordingly,
      IT IS ORDERED THAT:
    The petition for permission to appeal is granted. This
case is transferred to the regular docket. MLC’s opening
brief is due within 40 days of the date of filing of this order.
                                    FOR THE COURT

      January 30, 2020              /s/ Peter R. Marksteiner
         Date                       Peter R. Marksteiner
                                    Clerk of Court


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