Intellectual Property Law

Judge Sue L. Robinson: Disqualification Order Not Final for Purposes of Immediate Appeal

By Karen E. Keller, Andrew A. Lundgren et al.

Gauging "finality" for purposes of appeal can be tricky. Add to that inquiry the disqualification of a party's counsel, and the complexity only increases. District judge Sue L. Robinson shed light on the intersection of these two topics in a recent decision on a motion for reconsideration.

The Court earlier disqualified Apeldyn's counsel due to a conflict of interest. Apeldyn then sought reconsideration, or, alternatively, permission to appeal. The Court declined to reopen its earlier decision and, notably, foreclosed two opportunities for immediate appellate review.

On certifying an interlocutory appeal, the Court noted that "a reversal here . . . would leave the underlying substantive claims between the parties undisturbed" and that Apeldyn had failed to identify a "controlling question of law as to which there is a substantial ground for difference of opinion." As a result, resolving the disqualification issue now could not "materially advance the ultimate termination of the litigation" and thus could not give rise to interlocutory relief.

On certifying a final judgment, the Court similarly rejected the notion that disqualification presented an issue ripe for appeal: "The resolution of a collateral issue, such as the disqualification of counsel, cannot properly be considered a 'final judgment' with respect to an assertion of patent infringement."

With this decision, we can add disqualification of counsel to the collateral-order lexicon.

Apeldyn Corp. v. Samsung Electronics Co. Ltd., C.A. No. 08-568-SLR (D. Del. Mar. 12, 2010) (Robinson, J.).

Full post as published by Delaware IP Law Blog on March 24, 2010 (boomark / email).