                         NOTE: This order is nonprecedential.


United States Court of Appeals for the Federal Circuit


                                      2007-1265

                                POWEROASIS, INC.
                         and POWEROASIS NETWORKS, LLC,

                                               Plaintiffs-Appellants,

                                          v.

                                T-MOBILE USA, INC.,

                                               Defendant-Appellee.

                            ----------------------
                                   2007-1307

                                POWEROASIS, INC.
                         and POWEROASIS NETWORKS, LLC,

                                               Plaintiffs-Appellees,

                                          v.

                                T-MOBILE USA, INC.,

                                               Defendant-Appellant.

                                    ON MOTION

Before RADER, SCHALL, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

                                     ORDER

      PowerOasis, Inc. and PowerOasis Networks, LLC (PowerOasis) move to dismiss

T-Mobile USA, Inc.’s contingent cross-appeal. T-Mobile opposes. PowerOasis replies.
       PowerOasis filed a complaint in the United States District Court for the District of

New Hampshire against T-Mobile alleging patent infringement. After the district court

issued its Markman order, PowerOasis moved for summary judgment of infringement.

T-Mobile opposed and moved for summary judgment of noninfringement and invalidity

on 35 U.S.C. § 102(b) grounds.

       On March 30, 2007, the district court granted T-Mobile’s motion for summary

judgment of invalidity, rejecting PowerOasis’s assertion that the claims-in-suit were

entitled to the priority date of the original parent application. In doing so, the district

court construed “customer interface” to determine that the subject matter claimed in the

claims-in-suit extended beyond what was claimed in PowerOasis’s original application.

Because the district court decided the case on invalidity, it did not address either

PowerOasis’s motion for summary judgment of infringement or T-Mobile’s motion for

summary judgment of noninfringement. The district court entered its judgment.

       PowerOasis appealed. T-Mobile then filed a cross-appeal from the March 30,

2007 order “contingent upon the Federal Circuit not affirming the District Court’s grant of

summary judgment of invalidity.” Specifically, T-Mobile seeks a contingent review of the

district court’s construction of “customer interface,” noting the relevance of the issue on

the parties’ unresolved motions regarding infringement. T-Mobile further argues that

allowing the cross-appeal and resolving the claim construction issue on appeal would

avoid potential unnecessary litigation below, particularly in light of an alleged conflicting

claim construction of “customer interface” in a separate case involving the same patent.

       PowerOasis moves to dismiss T-Mobile’s cross-appeal.            We agree that the

2007-1265, -1307                             2
cross-appeal is improper and should be dismissed.

         It is only necessary and appropriate to file a cross-appeal when a party seeks to

enlarge its own rights under the judgment or lessen the rights of its adversary under the

judgment. Bailey v. Dart, 292 F.3d 1360, 1362 (Fed. Cir. 2002) (citing United States v.

Am Ry. Express Co., 265 U.S. 425, 435 (1924). Here, the district court’s judgment is

limited to validity and a ruling on infringement would not enlarge T-Mobile’s rights under

that judgment or lessen PowerOasis’s rights.          Thus, a cross-appeal to challenge

unresolved infringement issues is not proper.

         Accordingly,

         IT IS ORDERED THAT:

         (1)   PowerOasis’s motion is granted. T-Mobile’s cross-appeal is dismissed.

         (2)   Each side shall bear its own costs in 2007-1307.

         (3)   The revised official caption is reflected above.

                                                  FOR THE COURT




      Sept. 28, 2007                               /s/ William C. Bryson
            Date                                  William C. Bryson
                                                  Circuit Judge


cc:      Sibley P. Reppert, Esq.
         William F. Lee, Esq.
s19

ISSUED AS A MANDATE (As to 2007-1307 only): ______________________



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