
    ENZO BIOCHEM, INC., Enzo Life Sciences, Inc., and Yale University, Plaintiffs-Respondents, v. APPLERA CORP. and Tropix, Inc., Defendants-Petitioners. Enzo Biochem, Inc., Enzo Life Sciences, Inc., and Yale University, Plaintiffs-Petitioners, v. Applera Corp. and Tropix, Inc., Defendants-Respondents.
    Misc. Nos. 834, 835.
    United States Court of Appeals, Federal Circuit.
    Nov. 27, 2006.
    Before MAYER, LOURIE, and PROST, Circuit Judges.
   MAYER, Circuit Judge.

ORDER

Applera Corp. and Tropix, Inc. (Applera) and Enzo Biochem, Inc. et al. (Enzo Biochem) each petition for permission to appeal a claim construction order certified by the United States District Court for the District of Connecticut as one involving a controlling issue of law as to which there is substantial ground for difference of opinion and for which an immediate appeal may materially advance the ultimate termination of the litigation. See 28 U.S.C. § 1292(b), (c)(1). Applera responds to Enzo Biochem’s petition.

On October 12, 2006, the Connecticut district court issued a claim construction order regarding disputed claim terms in five patents. The Connecticut district court certified the order for interlocutory review, recognizing that portions of its claim construction ruling conflicted with a claim construction order issued by the United States District Court for the Southern District of New York in a pending case. The parties do not state that any determinations regarding infringement or invalidity have been made and do not state that any such issues were conceded.

Ultimately, this court must exercise its own discretion in deciding whether it will grant permission to appeal an interlocutory order certified by a trial court. See In re Convertible Rowing Exerciser Patent Litigation, 903 F.2d 822 (Fed.Cir. 1990); 28 U.S.C. § 1292(d)(2) (“the Federal Circuit may, in its discretion, permit an appeal to be taken from such order”). We determine that granting the petitions in these circumstances is not warranted.

Accordingly,

IT IS ORDERED THAT:

The petitions for permission to appeal are denied.  