Case: 20-110    Document: 24     Page: 1   Filed: 02/03/2020




          NOTE: This order is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

          FEIT ELECTRIC COMPANY, INC.,
                 Plaintiff-Petitioner

                            v.

               CFL TECHNOLOGIES LLC,
                  Defendant-Respondent
                 ______________________

                        2020-110
                 ______________________

   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 Illinois in No. 1:13-cv-
09339, Judge Sharon Johnson Coleman.
                ______________________

                     ON PETITION
                 ______________________

   Before REYNA, BRYSON, and TARANTO, Circuit Judges.
TARANTO, Circuit Judge.
                        ORDER
    Feit Electric Company, Inc. petitions for permission to
appeal an interlocutory order certified by the United
States District Court for the Northern District of Illinois.
CFL Technologies LLC opposes the petition. OSRAM
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2      FEIT ELECTRIC COMPANY, INC. v. CFL TECHNOLOGIES LLC




Sylvania, Inc., LEDVANCE, LLC, and General Electric
Company (collectively, “Amici”) move unopposed for leave
to file a brief amici curiae in support of the petition.
    The underlying proceedings involve two patents. As
relevant here, Feit argued that one of the patents, U.S.
Patent No. 6,172,464, is unenforceable for inequitable
conduct as a result of issue preclusion, based on prior
judgments so holding before this court significantly
changed the law of inequitable conduct in Therasense, Inc.
v. Becton, Dickinson & Co., 649 F.3d 1276 (Fed. Cir. 2011)
(en banc). The district court held that issue preclusion
does not apply here, invoking the change-of-law exception
to issue preclusion recognized in Dow Chemical Co. v.
Nova Chemicals Corp., 803 F.3d 620 (Fed. Cir. 2015), and
other cases. The case is continuing.
    Under 28 U.S.C. § 1292(b), a district court may certify
that an order that is not otherwise appealable is one
involving a controlling question of law as to which there is
substantial ground for difference of opinion and for which
an immediate appeal may materially advance the ulti-
mate termination of the litigation. The district court in
this case made that certification for its order denying
issue preclusion. This court must exercise its own discre-
tion in deciding whether to grant permission to appeal an
interlocutory order. See In re Convertible Rowing Exercis-
er Patent Litig., 903 F.2d 822, 822 (Fed. Cir. 1990). We
deny such permission.
    The petition for interlocutory appeal in this matter
concerns only one of the patents at issue in the underlying
proceeding. Moreover, Feit’s argument for issue preclu-
sion rests ultimately on a single contention based on a
single case—that this court’s decision in Morgan v. Dep’t
of Energy, 424 F.3d 1271 (Fed. Cir. 2005), which found
issue preclusion despite a change-in-law argument, is
inconsistent with Dow and other cases on the change-of-
law exception. Feit and the amici read too much into
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FEIT ELECTRIC COMPANY, INC. v. CFL TECHNOLOGIES LLC              3



Morgan. All that Morgan rejected was a version of the
change-in-law exception “so broad” that it would deny
preclusion based on judicial decisions that merely “clarify
earlier interpretations of a statute.” 424 F.3d at 1276. It
did not reject the higher standard for a result-altering
intervening change in law required by Dow Chemical,
which was applied in this case based on the significant
change of law made by this court in Therasense. 1
   Having considered the petition and opposition thereto,
we conclude that interlocutory review is not appropriate
here.
    Accordingly,
    IT IS ORDERED THAT:
    (1) The petition for permission to appeal is denied.
     (2) The motion for leave to file a brief amicus curiae is
granted. The brief, ECF No. 12 (pages 9–27), is accepted
for filing.




    1   Morgan was necessarily limited to a broad possi-
ble exception, and rejected only that, not the narrower,
more demanding exception set out in Dow Chemical. The
intervening decisions, Huffman v. Office of Pers. Mgmt.,
293 F.3d 1341, 1348–49 (Fed. Cir. 2001), and Willis v.
Dep’t of Agric., 141 F.3d 1139, 1143 (Fed. Cir. 1998), that
this court cited in Morgan, 424 F.3d at 1276 n.1, were at
most clarifications of the same principle of law already set
forth in Horton v. Dep’t of the Navy, 66 F.3d 279, 282
(Fed. Cir. 1995)—which both Huffman and Willis cited,
and which was rendered before the earlier agency decision
whose preclusive effect was in question. See Morgan v.
Dep’t of Energy, 81 M.S.P.R. 48, 50 (1999) (determination
of protected status of certain disclosure made in 1996 and
became final in 1997).
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4       FEIT ELECTRIC COMPANY, INC. v. CFL TECHNOLOGIES LLC




                               FOR THE COURT

    February 03, 2020          /s/ Peter R. Marksteiner
        Date                   Peter R. Marksteiner
                               Clerk of Court
s35
