
    KOLLMORGEN CORPORATION Plaintiff-Respondent, v. YASKAWA ELECTRIC CORPORATION and Yaskawa Electric America, Inc., Defendants-Petitioners,
    No. 685.
    United States Court of Appeals, Federal Circuit.
    DECIDED: Oct. 19, 2001.
    ON PETITION FOR PERMISSION TO APPEAL
    Before MICHEL, RADER, and GAJARSA, Circuit Judges.
   ORDER

RADER, Circuit Judge.

Yaskawa Electric Corporation and Yaskawa Electric America, Inc. petition this court for permission to appeal an interlocutory order certified by the United States District Court for the Western District of Virginia pursuant to 28 U.S.C. § 1292(b), (c)(1). Kollmorgen Corporation opposes. Yaskawa moves to file a reply brief, with reply brief attached.

The controlling question of law is whether a patentee who settles an earlier infringement case after a Markman ruling is precluded under the doctrine of collateral estoppel from relitigating claim construction issues determined in the prior case. The district court concluded that the doctrine of collateral estoppel did not apply because “a consensual settlement between the parties does not constitute a ‘final judgment.’ ” However, other jurisdictions have reached different conclusions on facts that the district court acknowledged “bear a striking similarity to the case at bar.” In TM Patents, L.P. and TM Creditors, L.L.C. v. IBM Corp., 72 F.Supp.2d 370, 377 (S.D.N.Y.1999), the district court held that Markman rulings on claim construction in a prior case “were sufficiently ‘final’ to permit application of collateral estoppel — even though the matter to which they were necessary was never reduced to a final judgment after verdict.”

In certifying its. order for interlocutory appeal, the district court determined that (1) the order involves a controlling question of law; (2) there is substantial ground for difference of opinion on the question, and; (3) the immediate determination of the question by this court will materially advance the ultimate termination of this action. See also 28 U.S.C. § 1292(b), (c)(1). We agree.

Accordingly,

IT IS ORDERED THAT:

(1) The petition is granted.

(2) The motion for leave to file a reply brief is granted.  