Case: 12-1593        Document: 39    Page: 1    Filed: 10/10/2012




          NOTE: This order is nonprecedential.


   Wniteb ~tate~ ~ourt of ~peaI~
       for tbe jfeberaI ({treutt

 INTEGRATED TECHNOLOGY CORPORATION AND
     NEVADA INTEGRATED TECHNOLOGY
              CORPORATION,
          Plaintiffs-Cross Appellants,
                                v.
      RUDOLPH TECHNOLOGIES, INC. AND
     MARINER ACQUISITION COMPANY LLC,
            Defendants-Appellants.


                     2012-1593, -1618, -1665


    Appeals from the United States District Court for the
District of Arizona in case no. 06-CV-2182, Judge Roslyn
O. Silver.


                         ON MOTION


    Before   LINN,   DYK, and   WALLACH,   Circuit Judges.
DYK, Circuit Judge.
                          ORDER
    Rudolph Technologies Inc. ("Rudolph") moves for a
stay, pending disposition of this appeal, of the permanent
Case: 12-1593     Document: 39     Page: 2    Filed: 10/10/2012




INTEGRATED TECHNOLOGY CORP. v. RUDOLPH                     2
TECHNOLOGIES, INC.

injunction entered by the United States District Court for
the District of Arizona. Integrated Technology Corpora-
tion (ITC) opposes.
     In its permanent injunction order, the district court
(1) enjoined Rudolph from making, using, offering to sell,
selling or importing into the United States, or supplying
from the United States, or causing to be made, used,
offered for sale, sold, imported into the United States, or
supplied from the United States, Rudolph's PRVX and
ProbeWoRx systems as well as any systems that are only
colorably different therefrom in the context of the infring-
ing claims ("Provision I"); (2) required that Rudolph seek
ITC and the district court's approval before making,
using, offering to sell, selling, or importing into the
United States, or supplying from the United States or
causing to be made, used, offered for sale, sold, imported
into the United States, or supplied from the United
States, any modification to its PRVX or ProbeWoRx
systems that Rudolph contends would render its systems
outside of the scope of the asserted patent claims ("Provi-
sion 2"); and (3) enjoined Rudolph from making, using,
offering to sell, selling, or importing into the United
States, or supplying from the United States, or causing to
be made, used, offered for sale, sold, imported into the
United States, or supplied from the United States, moth-
erboards or upgrades for the infringing PRVX or Probe-
WoRx systems ("Provision 3").
    To obtain a stay, pending appeal, a movant must estab-
lish a strong likelihood of success on the merits or, failing
that, nonetheless demonstrate a substantial case on the
merits provided that the harm factors militate in its favor.
Hilton v. Braunskill, 481 U.s. 770, 778 (1987). In deciding
whether to grant a stay, pending appeal, this court "as-
sesses the movant's chances of success on the merits and
weighs the equities as they affect the parties and the
Case: 12-1593        Document: 39   Page: 3   Filed: 10/10/2012




3                    INTEGRATED TECHNOLOGY CORP. V. RUDOLPH
                                         TECHNOLOGIES, INC.
public." E. L du Pont de Nemours & Co. v. Phillips Petro-
leum Co., 835 F.2d 277, 278 (Fed. Cir. 1987). See also
Standard Havens Prods. v. Gencor Indus., 897 F.2d 511
(Fed. Cir. 1990).
     Based on the arguments in the motions papers, and
without prejudicing the ultimate disposition of this case
by a merits panel, we determine that Rudolph has met its
burden to obtain a stay of the district court's permanent
injunction order, except that pre-2007 PRVX products
shall continue to be subject to Provision 1. Any party may
file a motion to expedite briefing, if it chooses.
      Accordingly,
      IT Is ORDERED THAT:
   The motion for a stay, pending appeal, of the perma-
nent injunction is granted in part.
                                     FOR THE COURT


                                     /s/ Jan Horbaly
                                     Jan Horbaly
                                     Clerk

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