
    CLONTECH LABORATORIES, INC., Plaintiff-Appellee, v. INVITROGEN CORPORATION (formerly Life Technologies, Inc.), Defendant-Appellant. Clontech Laboratories, Inc., Plaintiff-Appellant, v. Invitrogen Corporation (formerly Life Technologies, Inc.), Defendant-Appellee.
    Nos. 03-1464, 03-1484.
    United States Court of Appeals, Federal Circuit.
    DECIDED: Aug. 14, 2003.
   ON MOTION

ORDER

PROST, Circuit Judge.

Clontech Laboratories, Inc. moves to “partially dismiss” Invitrogen Corporation’s appeal 03-1464 as premature. Invitrogen responds and moves to stay proceedings in these appeals “until after the District Court has issued a final judgment on the False Marking claim.” Clontech replies and responds. Invitrogen replies. The court considers whether Clontech’s “contingent cross-appeal” should be dismissed.

The United States District Court for the District of Delaware issued an opinion and order concluding, among other things, that Invitrogen violated the Delaware Deceptive Trade Practices Act (DDTPA) and engaged in false marking. The district court entered an injunction against Invitrogen pursuant to the finding of the DDTPA violation, but did not decide any penalty for false marking. Invitrogen appealed, 03-1464, seeking review of the injunction based on the DDTPA violation and the finding that it engaged in false marking. “As a precautionary measure,” Clontech filed a contingent cross-appeal, 03-1484, acknowledging that “if Invitrogen’s appeal [related to false marking] is premature, Clontech’s notice of appeal is also premature and should be dismissed[.]”

Invitrogen timely appealed the injunction under the DDTPA and, thus, its appeal is appropriate. However, to the extent that it, and Clontech, seek review of the interlocutory false marking ruling, such review is premature. Thus, we deem the better course is to stay 03-1464 pending the district court’s final judgment relating to the false marking claim and to consolidate any future appeals so that the entire case can be heard as a whole.

Accordingly,

IT IS ORDERED THAT:

(1) Clontech’s motion to dismiss 03-1464 is denied.

(2) Invitrogen’s motion for a stay is granted. The parties are directed to move for consolidation within 14 days of any appeal of the district court’s final judgment on the false marking claim.

(3) Appeal 03-1484 is dismissed.

(4) Each side shall bear its own costs in 03-1484.  