TruePosition, Inc. v. Polaris Wireless, Inc, C.A. No. 12-646 – RGA-MPT, March 3, 2015.

Thynge, M.J.  Magistrate recommends denying Plaintiff’s motion for  allowance of a 54(b) interlocutory appeal or voluntary dismissal of one claim.

The disputed technology relates to equipment and software for locating mobile devices. A request to stay pending IPR was denied. The court thereafter found in a Report and Recommendation two claims invalid as indefinite on February 2, 2014.  Plaintiff filed objections and the case was stayed pending resolution of those objections.  The Patent Office found those claims to be definite. An IPR hearing based on anticipation and obviousness took place in July, 2014. On August 26, 2014 the Judge found the claims to be indefinite.  On November 5, 2014, the Patent Office found the claims to be obvious and anticipated. While invalidity of these two claims has been resolved for purposes of appeal, one additional claim has not.  The court finds that (1) plaintiff’s infringement claim is not final within the meaning of Rule 54(b), and (2) fact discovery regarding that third claim having been conducted on the third claim, dismissal without prejudice of that claim should be denied.