Judge Zobel, having issued a claim construction that rendered Emseal 2019s infringement position unfeasible, issued a final judgment of non-infringement pursuant to Fed. R. Civ. P. 54(b). MM Systems had opposed Emseal 2019s motion for entry of final judgment of non-infringement on the grounds that, absent a tolling of the statute of limitations on its counterclaims, it would most likely lose the ability to pursue those claims. Emseal had sought to have the counterclaims dismissed with or without prejudice, or in the alternative to enter final judgment under Rule 54(b) and stay the counterclaims. MM Systems was concerned that, with the litigation having been filed in 2014, a dismissal of its counterclaims would result in their not being capable of being refiled, as a dismissed complaint is treated as though it never existed for Federal statute of limitations purposes, and provides for refiling within one year for state statute of limitations purposes. MM Systems also asserted that the Federal Circuit would not accept jurisdiction if the counterclaims were stayed rather than dismissed (although I note that the principal case cited for this proposition, Pause Technology v. TiVo, notes that the Federal Circuit lacks jurisdiction in such circumstances 201cshort of meeting the conditions specified in Rule 54(b) 2026 201d). Judge Zobel stayed any activity relating to the counterclaims pending the outcome of the appeal.
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