36 F.3d 1107
INTERMEDICS, INC. Plaintiff-Respondent,
VENTRITEX CO., INC., Michael Sweeney and Benjamin Pless,
United States Court of Appeals, Federal Circuit.
Feb. 24, 1994.
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Before ARCHER, Circuit Judge, COWEN, Senior Circuit Judge, and RADER, Circuit Judge.
ON PETITION FOR PERMISSION TO APPEAL
RADER, Circuit Judge.
Ventritex Co., Inc. et al. petition for permission to appeal the order certified by the United States District Court for the Northern District of California as one involving a controlling question of law as to which there is a substantial ground for difference of opinion and for which an immediate appeal may materially advance the ultimate termination of the litigation. 28 U.S.C. Sec. 1292(b), (c)(1). Intermedics, Inc. opposes.
The district court stated that the following is the controlling question of law:
Against the procedural background and in the circumstances described below, would the United States Court of Appeals for the Ninth Circuit conclude that plaintiff's failure to comply with Rule 51 of the Federal Rules of Civil Procedure has the effect of depriving the trial court of jurisdiction to exercise its discretion to order a new trial on Ventritex' claim that after August 10, 1992, Intermedics prosecuted in bad faith in the six trade secret claims that were tried to the jury in November and December of 1992?
In our discretion, we decline to grant Ventritex's petition. In re Convertible Rowing Exercise Patent Lit., 903 F.2d 822 (Fed.Cir.1990) (court has complete discretion to grant or deny petition). We decline because the issue involves the application and interpretation of "uncertain" Ninth Circuit Law. Because these appeals are discretionary, we deem the better course is to decline to exercise our discretion to grant in cases where the issue involves the interpretation of unsettled law in a sister circuit.
IT IS ORDERED THAT:
Ventritex's petition is denied.