by Dennis Crouch

Shure v. ClearOne (Fed. Cir. 2021)

I previously mentioned this appellate case and the oral arguments remarks by Chief Judge Moore suggesting that ClearOne file a motion for sanctions against Shure for bringing the appeal.

Stinging Oral Arguments from Chief Judge Moore

At the district court, N.D. Ill. Judge Edmond Chang had issued a preliminary injunction prohibiting Shure from certain actions regarding its drop-ceiling microphone product. Later, Judge Chang found that Shure had violated the preliminary injunction.  In its new opinion, the court has dismissed the case, finding that it lacks appellate jurisdiction over the interlocutory contempt order.  ClearOne has also moved for sanctions.

Right to Appeal: Although a losing party has a right to appeal, the rules of civil procedure strictly limit the timing of appeals.  Generally, a losing party has a right to appeal only after the case is fully and finally decided by the district court. 28 USC 1291.  This is known as the “final judgment rule.” The contempt order that Shure appealed did not end the case. Rather the case is still pending before the district court and thus is not yet final.

Appeal Injunction Order: In addition to the final-judgment timing, a party has a right to appeal an injunction related orders.  28 USC 1292(a)(1).  The statute is written quite broadly to include orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.” 28 USC 1292(a)(1).  Notably, however, the statute does not expressly call-out contempt orders for violation of an injunction.

Here, Shure argued that Judge Chang had modified the preliminary injunction in the contempt order by enjoining all sales of Shure’s MXA910-A.  The appellate court disagreed. Although that particular product was not particularly named in the contempt order, it is a colorable imitation of the named MXA910 and fits within the injunction’s language of being “capable of being installed in a drop-ceiling” configuration.

With no right to appeal, the appellate court dismissed the case. “[W]e have no jurisdiction over this interlocutory appeal.”  The court explained that Shure should have appealed the preliminary injunction order itself. Of course, that deadline is in the rear view camera.

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ClearOne’s sanctions motion argues that Shure’s appeal was frivolous and seeks “just damages” as permitted by FRAP 38.  Here, in particular, the court has previously ruled (repeatedly) that an order interpreting an injunction is not immediately appealable. Sanctions Motion ClearOne.