NOTE; This order is nonprecedential

Um'ted States Court of Appeals
for the Federal Circuit

NARTRON CORPORATION,
Plaintiff-Appellee,

V.

BORG INDAK, INC.,
Defendant-Appellant.

2012-1292

Appeal from the United States District Court for the
Eastern District of Michigan in case no. (}6-CV-10683,
Senior Judge Lawrence P. Zatkoff.

ON MOTION

Before LOURIE, SCHALL and DYK, Circu,it Judges.

LOURIE, Circuit Judge.
O R D E R

Nartron Corporation moves to dismiss this appeal for
lack of jurisdiction Borg Indak, Inc. opposes. Nartron
replies. Borg Indak seeks leave to file a surreply or
alternatively to strike Nartron’s reply. Nartron opp0ses.

NARTRON CORPORATION V BORG INDAK, INC. 2

Borg Indak seeks this court’s review after the district
court issued its order concluding Nartron’s asserted
patent was infringed, not invalid, and not unenforceable,
and rejecting Borg Indak’s other counterclaims and af-
firmative defenses. But the district court noted that none
of the motions before it "addresse[d] damages or other
requested relief" and treated the motions as seeking
partial summary judgment. Nartron Corp. v. Borg Indak,
Inc., No. 06-10683 at 1-2, n.1 (E.D. Mich. Jan. 26, 2012).

Borg Indak contends that this court has authority to
review the order pursuant to 28 U.S.C. § 1292(0)(2), which
provides jurisdiction over appeals in patent cases that are
"final except for an accounting.” Here, however, Nartron
sought an injunction in its complaint and the trial court
has not yet resolved the dispute over injunctive relief.
Because a claim for injunctive relief remains pending and
there appears to be a dispute as to whether there is
ongoing infringement, such that we cannot s`ay that the
district court denied injunctive relief sub silentio, this
case is not final except for an accounting and we must
dismiss the appeal. See generally Stamicarbon, N.V. v.
Escambia Chem Corp., 430 F.2d 920, 931 (5th Cir. 197()).
Borg Indak may file a notice of appeal after the district
court rules on the request for injunctive relief or enters
final judgment

Accordingly,
IT Is ORDERED THAT:
(1) Nartron’s motion to dismiss is granted.

(2) Borg Indak’s motion is granted to the extent that
the court accepts the surrep1y.

3 NARTRON CORPORATION V BORG INDAK, lNC.

FoR THE CoURT

 0 3 2012 /s/ Jan Horbaly
Date J an Horbaly
Clerk

cc: Frank A. Angileri, Esq.

Jefffrey A. Sadowski, Esq. u_3 !ER%ll,!S"FUH

23

‘°’ Aue 03 2012

Issued as a l\/Iandate:

JANHOR
AUG 03 2012 UKWY

