
    No. 131-79C.
    November 2, 1979
    The Nedlog Company
    
      
      James F. Davis, attorney of record for plaintiff. Howrey & Simon, C. Frederic Leydig, James B. Muskal, and Leydig, Voit, Osann, Mayer & Holt, Ltd., of counsel.
    
      Paul J. Luchern, with whom was Acting Assistant Attorney General Alice Daniel, for defendant. Thomas J. Byrnes, of counsel.
    Before Friedman, Chief Judge, Kunzig and Smith, Judges.
    
   This case is before the court on defendant’s request for interlocutory review, pursuant to Rule 53(c), of the trial judge’s order of September 10, 1979, denying defendant’s motion to suspend the proceedings. The plaintiff, Nedlog Company ("Nedlog”), alleged in its petition that defendant has infringed its patent by using infringing products the defendant had leased from plaintiffs competitor, Felbro Food Products, Inc. ("Felbro”). Shortly after this action was commenced, Felbro instituted suit against Nedlog in the United States District Court for the Central District of California. Felbro seeks, among other things, a declaratory judgment that Nedlog’s patent is invalid and that Felbro has not infringed it. The United States then moved to suspend the case in this court pending the determination of Felbro’s suit against Nedlog. Trial Judge Browne denied the motion.

Rule 53(c)(2)(ii) requires that, unless the trial judge certifies an interlocutory order for immediate review (which Trial Judge Browne did not do here), interlocutory review will be granted only upon "a showing of extraordinary circumstances whereby further proceedings pursuant to the said order would irreparably injure the complaining party or occasion a manifest waste of the resources of the court or of the parties.” The defendant has not made such a showing. The defendant contends that since all the issues in the present case also are involved in the California case (the trial of which is scheduled to begin on December 4, 1979), permitting the case here to go forward would result in unnecessary duplication of work and thereby waste the resources of the court and the parties. In an order of August 7, 1979, however, Trial Judge Browne recognized that the proceedings in the two cases should be coordinated. We have no doubt that Trial Judge Browne will take whatever action is necessary to avoid the duplication of work which the defendant fears.

The defendant has not shown extraordinary circumstances under Rule 53(c)(2)(ii). The request for interlocutory review is denied.

On January 9, 1980 the petition was dismissed pursuant to the filing of the parties’ stipulation of dismissal.  