Magistrate Judge Thynge recommends denial of motion seeking Rule 54(b) certification or voluntary dismissal without prejudice.

Chief Magistrate Judge Mary Pat Thynge recently issued a report recommending the denial of a plaintiff’s motion which sought to accelerate an appeal of the Court’s ruling that Claims 113 and 114 of U.S. Patent No. 7,783,299 are invalid.  TruePostition, Inc. v. Polaris Wireless, Inc., C.A. No. 12-646-RGA-MPT (D. Del. Mar. 3, 2015).  Claims 113 and 114 previously had been found indefinite after a Markman hearing, but the parties were still litigating factual issues relating to a third claim, Claim 98.  With respect to Rule 54(b) certification, Judge Thynge explained, “the three asserted claims must be viewed as part of a single action for relief based on infringement.  Claims 113 and 114 have been resolved; Claim 98 has not.  As a result, the single right of action for relief based on infringement of the ‘299 Patent is not final within the meaning of Rule 54(b).”  Id. at 8.  With respect to voluntary dismissal without prejudice under Rule 41(a)(2) of the remaining Claim 98 infringement claim, Magistrate Judge Thynge viewed such a dismissal as unwarranted given that the parties already had expended significant amounts of their time, and the Court’s time, on issues relating to the Claim 98.  Id. at 13-14.  As a result, the plaintiff’s motion was denied.

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