                         NOTE: This order is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                      2008-1564

                            AVOCENT REDMOND CORP.,

                                                Plaintiff-Appellant,

                                           v.

                   ROSE ELECTRONICS, PETER MACOUREK,
             and DARIOUSH RAHVAR (doing business as David Rahvar),

                                                Defendants-Appellees,

                                          and

                             ATEN TECHNOLOGY, INC.
                        and ATEN INTERNATIONAL CO. LTD.,

                                                Defendants-Appellees,

                                          and

                  BELKIN CORP., BELKIN INTERNATIONAL, INC.,
                              and BELKIN, INC.,

                                                Defendants-Appellees.

                                     ON MOTION

 Appeal from the United States District Court for the Western District of Washington in
                 case no. 06-CV-1711, Judge Marsha J. Pechman.

Before GAJARSA, LINN, and PROST, Circuit Judges.

PROST, Circuit Judge.

                                      ORDER

      Rose Electronics et al. (Rose) move to dismiss Avocent Redmond Corp.'s appeal

for lack of jurisdiction. Avocent opposes. Rose replies. Avocent moves for leave to file

a surreply, with surreply attached. Rose opposes. Avocent replies.
       Avocent sued Rose in the United States District Court for the Western District of

Washington, alleging patent infringement.         Rose filed a request for ex parte

reexamination with the Patent and Trademark Office (PTO). On Rose’s motion, the

district court stayed proceedings on October 30, 2007, pending the outcome of the

reexamination proceedings.

       On June 19, 2008, Avocent moved the district court to lift the stay and also to

modify the court’s protective order to permit Avocent to file certain sales information with

the PTO that had been submitted in the district court case under a protective order. On

August 18, 2008, the court denied Avocent’s motions, treating Avocent’s motion to lift

the stay as an untimely motion for reconsideration of the court’s October 2007 order.

Avocent filed this notice of appeal, seeking review of the August 18, 2008 order.

       In Gould v. Control Laser Corp., 705 F.2d 1340, 1341 (Fed. Cir. 1983), we held

that an order staying district court proceedings pending reexamination by the PTO was

not an immediately appealable order. In Slip Track Sys., Inc. v. Metal Lite, Inc., 159

F.3d 1337, 1340 (Fed. Cir. 1998), we held that under the facts of that case, a district

court order staying proceedings pending reexamination was appealable because it

effectively could put one of the appellants out of court. We noted that it was possible

that the appellants would be unable to raise the issue of priority of invention in the

district court or in this court on appeal from the PTO's decision. Unlike the situation

involving the appellant in Slip Track, Avocent has not shown that no court could decide

the patent issues, although perhaps the PTO would not decide the issues with all of the

evidence that Avocent wishes to submit.        This showing does not make the order

appealable under our decision in Slip Track.       Additionally, Avocent has not met its

burden of establishing that the portion of the order denying the motion to modify the

protective order is an immediately appealable order.
2008-1564                                  -2-
      Accordingly,

      IT IS ORDERED THAT:

      (1)   The motion to dismiss is granted. The appeal is dismissed.

      (2)   The motion for leave to file a surreply is granted.

      (3)   Each side shall bear its own costs.

                                                FOR THE COURT



      Feb. 6, 2009                               /s/ Jan Horbaly
          Date                                  Jan Horbaly
                                                Clerk

cc:   E. Robert Yoches, Esq.
      James D. Berquist, Esq.
      Ryan Ken Yagura, Esq.
      Michael S. Dowler, Esq.

s19

ISSUED AS A MANDATE: ______________________




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