                         NOTE: This order is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2009-1040

                     KONINKLIJKE PHILIPS ELECTRONICS N.V.,

                                                 Plaintiff-Appellant,

                                            v.

                    CARDIAC SCIENCE OPERATING COMPANY,

                                                 Defendant-Appellee.

 Appeal from the United States District Court for the Western District of Washington in
                  case no. 08-CV-543, Judge Marsha J. Pechman.

                                      ON MOTION

Before GAJARSA, LINN, and PROST, Circuit Judges.

PROST, Circuit Judge.

                                       ORDER

      Koninklijke Philips Electronics N.V. (Philips) moves to stay proceedings in this

appeal pending district court action. Cardiac Science operating Company (Cardiac)

opposes.     The court considers whether Philips’ appeal should be dismissed as

premature.

      On September 23, 2008, the United States District Court for the Western District

of Washington issued an order dismissing Philips’ complaint.            Although the court’s

October 9, 2008 judgment states that “there are no remaining issues for the Court to

resolve,” the district court never explicitly dismissed Cardiac pending counterclaim.

      Because the district court has not yet entered an order dismissing Cardiac’s

counterclaim, we deem the better course is to dismiss the appeal as premature. See
Nystrom v. Trex Co., 339 F.3d 1347, 1350 (Fed. Cir. 2003). After the district court has

adjudicated Cardiac’s counterclaim and entered final judgment, the parties may file any

timely appeals.

      Accordingly,

      IT IS ORDERED THAT:

      (1)    Philips’ motion is denied.

      (2)    The appeal is dismissed.

      (3)    Each side shall bear its own costs.

                                                   FOR THE COURT



____Feb. 6, 2009                                   _/s/ Jan Horbaly__________________
      Date                                         Jan Horbaly
                                                   Clerk

cc:   Eric H. Chadwick, Esq.
      Paul Thomas Meiklejohn, Esq.
      J. Michael Jakes, Esq.
s20




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