United States District Court, W.D. Pennsylvania
NORA BARRY FISCHER, District Judge.
Pending before the Court is the Plaintiff's "Motion for Certification Under 28 U.S.C. 1292(b)." (Docket No. 260). Upon consideration of the parties' briefs, (Docket Nos. 261, 263), the Court's order regarding supplemental briefing, (Docket No. 264), and said supplemental briefing, filed on September 22, 2014, (Docket Nos. 265, 266), for the following reasons, the Motion  is DENIED.
The pending motion arises in the wake of the Court's order denying determination under Rule 54(b) and ordering that the motion be re-filed as one seeking certification under 28 U.S.C. § 1292(b). (Docket No. 259). Pursuant to that order, Plaintiff seeks certification of the Court's construction of claims 1-3 and 12-14 of U.S. Patent No. 8, 047, 609 ("the '609 patent"), (Docket No. 59) and the Court's order to stay the case pending appeal of the reexamination of the '609 patent, (Docket No. 234). Specifically, Plaintiff seeks certification of the following questions:
1. Did the district court err in construing the term "crank" to mean: "an arm attached at a right angle to a shaft which turns about the axis of the shaft?"
2. Did the district court err in construing the term "connected fixedly" to mean: "separate pieces joined or linked securely to one another?"
3. Did the district court err as a matter of law in granting summary judgment of non-infringement of claims 12 and 14 based on a construction the term [sic] "first driving mechanism" that necessarily includes a gear and a link, when the claim does not call for such elements?
4. Did the district court err as a matter of law in granting summary judgment of non-infringement of claim 14 based on a construction of the term "guiding elements" that requires a track that is more than a surface by which the wheels are guided vertically?
5. Whether the district court may properly defer to a Patent Office reexamination for the determination of patent validity when the district court and the Patent Office have adopted directly opposite views on a question of claim construction of the same patent, i.e., whether the preamble of a claim is a limitation?
(Docket No. 261 at pp. 2, 4). As the parties addressed Questions 1-4 together and Question 5 separately, the Court will do the same.
II. Legal Standard
Title 28 U.S.C. § 1292(b) allows for certification of a question for interlocutory appeal if the order at issue "(1) involve[s] a controlling question of law, ' (2) offer[s] substantial ground for difference of opinion' as to its correctness, and (3) if appealed immediately materially advance[s] the ultimate termination of the litigation.'" Katz v. Carte Blanch Corp., 496 F.2d 747, 754 (3d Cir. 1973) (quoting 28 U.S.C. § 1292(b)). Even if the moving party satisfies the statutory criteria, the district court "possesses discretion to deny certification of an appeal." In re Chocolate Confectionary Antitrust Litig., 607 F.Supp.2d 701, 708 (M.D. Pa. 2009). However, such discretion should not be exercised when "certification will materially advance the instant matter and bring clarity to a still-developing area of law." Id.
In determining whether an order presents a controlling question of law, the Court must look to whether (1) an incorrect disposition would constitute reversible error if presented on final appeal or (2) if the question is "serious to the conduct of the litigation either practically or legally." Katz, 496 F.2d at 755. The clearest evidence of "substantial grounds for difference of opinion" is where "there are conflicting interpretations from numerous courts." Beazer E., Inc. v. Mead Corp., No. 91-408, 2006 WL 2927627, at *2 (W.D. Pa. Oct. 12, 2006) (Diamond, J.). And, in terms of determining whether appeal would materially advance the ultimate termination of litigation, courts look to "(1) whether the need for trial would be eliminated; (2) whether the trial would be simplified by ...