
    FLEX-REST, LLC, Plaintiff-Appellant, v. STEELCASE, INC., Defendant-Appellee.
    No. 04-1331.
    United States Court of Appeals, Federal Circuit.
    Oct. 13, 2004.
    Before MAYER, Chief Judge, MICHEL and CLEVENGER, Circuit Judges.
   ORDER

CLEVENGER, Circuit Judge.

Flex-Rest, LLC responds to the court’s order directing it to respond to the issue of whether the decision of the United States District Court for the Western District of Michigan constituted a final judgment.

Flex-Rest filed a notice of appeal of the trial court’s decision in Flex-Rest, LLC v. Steelcase, Inc., No. 1:02-cv-00537 (W.D.Mich. Mar. 12, 2004) declaring its patent invalid. However, proceedings concerning Steelcase’s defense of inequitable conduct are ongoing in the district court. “A district court’s judgment is final where it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Ultra-Precision Mfg. Ltd. v. Ford Motor Co., 338 F.3d 1353, 1356-57 (Fed.Cir.2003) (citation omitted). Because the district court has not concluded its proceedings, we determine that there is no final judgment and dismiss. Flex-Rest may, of course, file a new notice of appeal after the district court concludes its proceedings and enters final judgment.

Accordingly,

IT IS ORDERED THAT:

(1) The appeal is dismissed.

(2) Each side shall bear its own costs. 
      
       In its response Flex-Rest mentions Fed.R.Civ.P. 54(b). However, it does not appear that the district court has entered judgment pursuant to Rule 54(b) in this case.
     