Rexnord Industries, LLC v. Kappos

Case: 12-1584 Document: 28 Page: 1 Filed: 12/27/2012

NOTE: This order is nonprecedential.

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REXNORD INDUSTRIES, LLC, Appellant, v. DAVID J. KAPPOS, DIRECTOR UNITED STATES PATENT AND TRADEMARK OFFICE, Appellee, v. HABASIT BELTING, INC. (NOW KNOWN AS HABASIT AMERICA INC.), Cross-Appellant.

2012-1584, -1585 (Reexamination No. 95/000,071)

Appeals from the United States Patent and Trade- mark Office, Board of Patent Appeals and Interferences.

ON MOTION

Before NEWMAN, PROST, and WALLACH, Circuit Judges. WALLACH, Circuit Judge.

Case: 12-1584 Document: 28 Page: 2 Filed: 12/27/2012 REXNORD INDUSTRIES v. KAPPOS 2

ORDER

The Director of the United States Patent and Trade- mark Office moves to dismiss Rexnord's appeal for lack of jurisdiction. Rexnord responds.

Rexnord filed this appeal seeking review of a non-final decision by the Board of Patent Appeals and Interfer- ences, which had initially and mistakenly been marked "final." That decision included a new ground of rejection against certain of the patentee's claims. The Board changed its designation of the decision after Rexnord filed the appeal.

The Director argues that this court lacks jurisdiction to review an appeal of a non-final decision by the Board. We agree. See, e.g., In re Makari, 708 F.2d 709 (Fed. Cir. 1983). Rexnord may seek review from a final Board decision if appropriate. Accordingly, IT Is ORDERED THAT:

The motion to dismiss is granted. The appeals are dismissed. Each side shall bear its own costs.

FOR THE COURT

/s/ Jan Horbaly Jan Horbaly Clerk s24 Issued As A Mandate: DEC 21 2012