This morning the Federal Circuit issued a nonprecedential order denying a petition for panel rehearing and en banc rehearing. The petition comes in a patent case appealed from the District of New Jersey. Notably, Judge O’Malley wrote a dissenting opinion, and Judge Newman dissented without opinion. Here are the introductions to the order and the dissenting opinion.

Mondis Technology Ltd. v. LG Electronics Inc. (Nonprecedential)

LG Electronics Inc. and LG Electronics USA, Inc., filed a combined petition for panel rehearing and rehearing en banc. A response to the petition was invited by the court and filed by Mondis Technology Ltd., Hitachi Maxell, Ltd., and Maxell, Ltd. The petition was referred to the panel that heard the appeal, and thereafter the petition for rehearing en banc was referred to the circuit judges who are in regular active service. The court conducted a poll on request, and the poll failed.

Upon consideration thereof,


The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

O’MALLEY, Circuit Judge, dissenting from denial of the petition for rehearing en banc.

With this case, this court compounds the error it made in Robert Bosch, LLC v. Pylon Manufacturing Corp., 719 F.3d 1305 (Fed. Cir. 2013) (en banc). In Robert Bosch, this court adopted an incorrect interpretation of 28 U.S.C. § 1292(c)(2). Section 1292(c)(2) gives us jurisdiction over district court decisions that are “final except for an accounting.” The majority in Robert Bosch misinterpreted “accounting” to include a damages trial and any willfulness determination, thus giving ourselves jurisdiction over appeals from district court decisions that are decidedly not final. In this case, this court further warps our jurisdiction over interlocutory appeals—this time by misapplying Supreme Court precedent and adopting an atextual interpretation of Federal Rule of Appellate Procedure (“FRAP”) 4(a)(4)(A). We should correct that error before it sows confusion among litigants and to prevent us from straying even further from the fundamental jurisdictional and procedural rules that govern all Article III Courts. Thus, I dissent from the denial of rehearing.