Case: 20-1812 Document: 68 Page: 1 Filed: 08/03/2021
`United States Court of Appeals
`for the Federal Circuit
`Appeal from the United States District Court for the
`District of New Jersey in No. 2:15-cv-04431-SRC-CLW,
`Judge Stanley R. Chesler.
`Decided: August 3, 2021
`MARTIN JAY BLACK, Dechert LLP, Philadelphia, PA, ar-
`gued for plaintiffs-appellees. Also represented by JEFFREY
`MICHAEL J. MCKEON, Fish & Richardson PC, Washing-
`ton, DC, argued for defendants-appellants. Also repre-
` ______________________


`Case: 20-1812 Document: 68 Page: 2 Filed: 08/03/2021
`Before DYK, PROST*, and HUGHES, Circuit Judges.
`HUGHES, Circuit Judge.
`LG Electronics Inc. and LG Electronics USA, Inc. seek
`interlocutory review of a decision of the United States Dis-
`trict Court for the District of New Jersey denying LG cer-
`tain relief with respect to the liability portion of this case.
`Because LG’s notice of appeal was not filed within thirty
`days of the date at which the liability issues became final
`except for an accounting, LG’s appeal is untimely. We dis-
`miss the matter for lack of jurisdiction.
`Plaintiff Mondis Technology Ltd. (Limited) is the as-
`signee of U.S. Patent No. 7,475,180, which is directed gen-
`erally to a display unit configured to receive video signals
`from an external video source. See ’180 patent at 2:37–3:48.
`In 2014, Limited brought this action for patent infringe-
`ment against Defendants LG Electronics, Inc. and LG Elec-
`tronics U.S.A., Inc. (collectively LG). After the district court
`granted Limited leave to join Hitachi Maxell Ltd. and Max-
`ell, Ltd. (collectively Hitachi) as plaintiffs to address a
`standing challenge brought by LG, the case proceeded to a
`jury trial. The jury found that the accused LG televisions
`infringed claims 14 and 15 of the ’180 patent, that the
`claims were not invalid, and that LG’s infringement was
`willful, and awarded Plaintiffs (collectively Mondis) $45
`million in damages.
`Following the jury verdict, LG filed several post-trial
`motions including: (1) a motion for JMOL or new trial of
`non-infringement, (2) a motion for JMOL or new trial of
`invalidity, and (3) a motion for JMOL, new trial, or
`* Circuit Judge Sharon Prost vacated the position of
`Chief Judge on May 21, 2021.


`Case: 20-1812 Document: 68 Page: 3 Filed: 08/03/2021
`remittitur regarding the damages award and willfulness
`finding. Mondis Tech. Ltd v. LG Elecs., Inc., 407 F. Supp.
`3d 482, 484 (D.N.J. Sept. 24, 2019) (September Order).
`Mondis also filed post-trial motions seeking enhanced dam-
`ages, attorney’s fees, and interest. Id.
`The district court disposed of the post-trial motions in
`two separate orders. On September 24, 2019, the district
`court denied LG’s motions regarding infringement, invalid-
`ity, and willfulness but ordered further briefing on dam-
`ages. September Order, 407 F. Supp. 3d at 502–03. Then,
`on April 22, 2020, the district court granted LG’s motion
`for a new trial on damages. Mondis Tech. Ltd. v. LG Elecs.,
`Inc., No. CV 15-4431, 2020 WL 1933979, at *5–6 (D.N.J.
`Apr. 22, 2020) (April Order).
`Following the April Order, on May 8, 2020, LG filed no-
`tice of this interlocutory appeal. LG seeks to challenge the
`district court’s decision denying LG’s post-trial motions re-
`garding infringement, invalidity, and willfulness (all of
`which were decided in the September Order). LG also chal-
`lenges the district court’s pretrial decision to allow the join-
`der of Hitachi and argues that, without such joinder,
`Limited lacks statutory authority to bring suit.
`After LG filed its notice of appeal, Mondis moved to dis-
`miss the appeal as untimely, arguing that LG needed to file
`notice of appeal within thirty days of the September Order.
`We ordered the parties to address jurisdiction in the merits
`We have jurisdiction to hear certain interlocutory ap-
`peals under 28 U.S.C. § 1292(c)(2), which provides the Fed-
`eral Circuit with exclusive jurisdiction over “an appeal
`from a judgment in a civil action for patent infringement
`which would otherwise be appealable to the United States
`Court of Appeals for the Federal Circuit and is final except


`Case: 20-1812 Document: 68 Page: 4 Filed: 08/03/2021
`for an accounting.” Appeals under § 1292(c)(2) are subject
`to the time limits prescribed by 28 U.S.C. § 2107(a):
`Except as otherwise provided in this section, no ap-
`peal shall bring any judgment, order or decree in
`an action, suit or proceeding of a civil nature before
`a court of appeals for review unless notice of appeal
`is filed, within thirty days after the entry of such
`judgment, order or decree.
`Thus, LG had thirty days from the date at which the dis-
`trict court’s judgment became “final except for an account-
`ing” to file an interlocutory appeal.
`We have previously held that under § 1292(c)(2), a
`judgment is final except for an accounting when all liability
`issues have been resolved, and only a determination of
`damages remains. See Robert Bosch, LLC v. Pylon Mfg.
`Corp., 719 F.3d 1305, 1313 (Fed. Cir. 2013) (en banc) (“An
`‘accounting’ in the context of § 1292(c)(2) includes the de-
`termination of damages . . . .”). LG does not challenge this
`holding, nor could it, since LG seeks interlocutory review
`of the district court’s liability determination while damages
`remain outstanding.
` In this case, all liability issues were resolved with the
`district court’s September Order which ruled on LG’s post-
`trial motions regarding infringement and invalidity and
`left only damages-related motions outstanding. Therefore,
`for the purposes of appeal under § 1292(c)(2), this case was
`final except for an accounting after the September Order,
`and LG had thirty days from the September Order to file
`notice of interlocutory appeal. Since LG did not file its no-
`tice of appeal until May 8, 2020, more than seven months
`after the September Order, LG’s appeal is untimely, and
`we lack jurisdiction to consider the matter.
`Our ruling is consistent with the Supreme Court’s de-
`cision in Budinich v. Becton Dickinson & Co., 486 U.S. 196
`(1988). Following a jury verdict in a diversity case removed


`Case: 20-1812 Document: 68 Page: 5 Filed: 08/03/2021
`to federal district court, the petitioner in Budinich timely
`filed motions for a new trial and for attorney’s fees. Id.
`at 197. In a first order, the district court denied the new-
`trial motions but did not resolve attorney’s fees. Id. at
`197–98. Months later, the district court issued a final order
`resolving attorney’s fees. Id. at 198. Within thirty days of
`the final order, the petitioner filed notice of appeal covering
`all the district court’s post-trial orders. Id. The petitioner
`argued that such an appeal was timely with respect to the
`merits, relying on a provision of Colorado state law which
`instructed that a claim was not final and appealable until
`attorney’s fees had been determined. Id. The Supreme
`Court disagreed, finding that federal law governed under
`the Supremacy Clause, and that under federal law, the
`merits decision was final after the first post-trial order that
`resolved all issues except for attorney’s fees. Id. at 200
`(“[W]e think it indisputable that a claim for attorney’s fees
`is not part of the merits of the action to which the fees per-
`tain . . . .”). Similarly, here the district court’s decision was
`final as to liability at the time of the September Order that
`resolved all liability issues. Just as the outstanding matter
`of attorney’s fees could not toll the time for appeal in Budi-
`nich, the outstanding damages determination cannot toll
`the time for LG to appeal here.
`LG’s timeliness arguments focus on the Federal Rules,
`rather than the statutory requirements for jurisdiction. As
`an initial matter, the Rules cannot override federal statute
`any more than state law could do so in Budinich, and to the
`extent that there is any conflict between the Rules and fed-
`eral statutes, the statutes must prevail. See Bowles v. Rus-
`sell, 551 U.S. 205, 214 (2007) (“[The Supreme Court] has
`no authority to create equitable exceptions to jurisdictional
`requirements . . . .”). But we do not read any conflict be-
`tween the Rules and the statutory requirements of appeal
`and conclude that, read together, the statutes and the
`Rules bar this interlocutory appeal.


`Case: 20-1812 Document: 68 Page: 6 Filed: 08/03/2021
`The parties first disagree over what interlocutory judg-
`ment is being challenged in this appeal. Mondis argues
`that LG is appealing from the September Order because
`that order resolved all liability issues such that the judg-
`ment became final except for an accounting. LG argues
`that the underlying judgment being challenged is the jury’s
`special verdict, which was constructively entered as a judg-
`ment by operation of Rule 58(c) of the Federal Rules of Civil
`Procedure (FRCP) on September 9, 2019, prior even to the
`September Order.1
`We agree with Mondis that the September Order is the
`operative date that started the thirty-day clock to file a no-
`tice of appeal, because that is the date that all liability is-
`sues became final, such that the judgment on liability
`became ripe for an appeal. No matter what judgment is be-
`ing challenged, the date that matters under § 1292(c)(2) is
`the date at which the case became final except for an ac-
`The parties next dispute the effect of Rule 4 of the Fed-
`eral Rules of Appellate Procedure (FRAP). FRAP 4(a)(4) in-
`structs that, if a party timely files any of several
`enumerated motions, including post-trial motions for judg-
`ment under FRCP 50(b) or for a new trial under FRCP 59,
`“the time to file an appeal runs for all parties from the en-
`try of the order disposing of the last such remaining mo-
`1 However, when asked at oral argument, LG’s attor-
`ney appeared to agree that the September Order was being
`challenged. See Oral Arg. at 0:35–0:48,
`1812 05062021.mp3 (Q: “What is the interlocutory order
`that you’re challenging?” A: “We’re challenging the liability
`order—the September 2019 liability order.”)


`Case: 20-1812 Document: 68 Page: 7 Filed: 08/03/2021
`LG timely filed post-trial motions including the liabil-
`ity-related motions ruled on by the district court in the Sep-
`tember Order and the damages-related motions ruled on by
`the district court in the April Order. Because the entry of
`the order disposing of the last remaining post-trial motion
`occurred in the April Order, LG argues that Rule 4(a)(4)
`tolled the start of the thirty-day clock for appeal until the
`entry of the April Order.
`We disagree with LG’s interpretation of FRAP 4 when
`applied to an interlocutory appeal under § 1292(c)(2).
`FRAP 4(a)(4) applies to both interlocutory appeals and fi-
`nal appeals. See, e.g., Lane v. New Jersey, 725 F. App’x 185,
`187 (3d Cir. 2018) (applying FRAP 4(a)(4) in an interlocu-
`tory appeal). But when FRAP 4(a)(4) pertains to interlocu-
`tory appeals under § 1292(c)(2), the enumerated motions
`can only toll the time to appeal if they relate to the inter-
`locutory judgment such that the judgment is not final ex-
`cept for an accounting until the court disposes of the
`motions. To read the Rule to toll the interlocutory appeal
`period for motions unrelated to the interlocutory judgment
`would conflict with the statute. Lane is consistent with this
`reading of FRAP 4(a)(4) because it involved tolling for an
`enumerated motion related to the interlocutory judgment
`being appealed. See 725 F. App’x at 187 (holding that FRAP
`4(a)(4) tolled time to appeal the denial of a preliminary in-
`junction until the district court ruled on a related FRCP 59
`motion to alter or amend the judgment). Thus, here, Rule
`4(a)(4) did toll the time to file the interlocutory appeal re-
`garding liability based on the post-trial motions concerning
`liability, but only until those motions were resolved—Sep-
`tember 24, 2019.
`LG argues that the text of FRAP 4(a)(4) requires that
`the timeframe for an interlocutory appeal must be tolled
`even for motions unrelated to the judgment being ap-
`pealed. See Appellant’s Reply Br. at 4 (citing the provision
`of FRAP 4(a)(4)(A)(ii) that motions under FRCP 52(b) can
`toll, “whether or not granting the motion would alter the


`Case: 20-1812 Document: 68 Page: 8 Filed: 08/03/2021
`judgment”). At most, this suggests that a timely motion
`will toll the time for appeal even though the judgment be-
`ing appealed will not be altered. But it does not suggest
`that a motion need not relate to the judgment appealed
`from. FRCP 52(b) motions to amend or make additional fac-
`tual findings related to an interlocutory judgment being
`appealed might not alter the judgment, but, while they re-
`main outstanding, the interlocutory judgment is not final
`except for an accounting because the district court’s deci-
`sion could be affected. When only motions unrelated to the
`judgment being appealed remain, the judgment is final ex-
`cept for an accounting and the time to file an interlocutory
`appeal begins.
`Because FRAP 4(a)(4) does not toll the interlocutory-
`appeal period for outstanding motions unrelated to the in-
`terlocutory judgment, the damages motions that remained
`outstanding after the September Order did not toll the time
`frame for LG to file its notice of appeal on the liability por-
`tion of this case. Thus, Rule 4(a)(4) is consistent with the
`combined requirements of § 1292(c)(2) and § 2107(a) that
`notice of appeal be filed within thirty days of the date at
`which the case became final except for an accounting. Be-
`cause LG did not file its notice of appeal within thirty days
`of the issuance of the September Order, its notice of inter-
`locutory appeal was untimely.
`As a final matter, we note that interlocutory appeals
`are voluntary, and LG is not precluded from challenging
`the liability determinations of the district court under our
`§ 1295 jurisdiction once the damages determination is com-
`pleted. Mondis admits as much. See Appellee’s Br. at 19 n.1
`(“LG will eventually have a right to appeal the liability
`judgment.”). For the purposes of this interlocutory appeal,
`however, LG has missed the statutory deadline and is un-
`timely. We therefore dismiss for lack of jurisdiction.

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