Appeal from the United States District Court for the District of Nevada in No. 12-CV-0053, Judge Gloria M. Navarro.
David Spencer Bloch, Winston & Strawn LLP, of San Francisco, California and Steffen N. Johnson, of Washington, DC, argued for plaintiff-appellee. With them on the brief were Jennifer A. Golinveaux, K. Joon Oh and Elisabeth A. Derby, of San Francisco, California.
Lynn J. Alstadt, Buchanan Ingersoll & Rooney PC, of Pittsburgh, Pennsylvania, argued for defendants-appellants. With him on the brief was Steven D. Czajkowski.
Before Rader, Chief Judge, Lourie, and O'Malley, Circuit Judges.
O'Malley, Circuit Judge.
AE Tech Co., Ltd. ("AE Tech"), S&F Corporation, and GreatShield, Inc. appeal the district court's preliminary injunction granted in favor of Aevoe Corporation ("Aevoe") barring particular products from the market. The district court originally granted the injunction in January 2012. AE Tech did not appeal from that order. In May 2012, the district court concluded that the Appellants had violated the injunction with an alleged redesign. At that time, the court altered certain language in the injunction. Appellants now argue that the court modified the injunction in May 2012 and that their appeal from that modification is timely. Because the district court merely clarified the scope of the original injunction in its May 2012 order, we find there was no modification that substantially changed the legal relationship between the parties. Based on this finding, we dismiss this appeal for lack of jurisdiction.
Aevoe is the assignee of U.S. Patent No. 8, 044, 942 ("the '942 patent"), which is directed to a touch screen protector for electronic devices. The '942 patent generally discloses a touch screen protector for use on hand-held electronic devices that can be easily attached and removed without trapping air bubbles or dust. '942 patent, col. 1, ll. 10–55. The claimed touch screen protector includes a plastic film and a spacer. Id., col. 8, ll. 28–48. The spacer surrounds the thin plastic film and is sized to fit the particular device. The spacer must be thick enough to ensure that the plastic film does not make direct contact with the hand-held device screen, but thin enough such that a user can still easily make contact with the touch screen when pressing down on the film. Id. The spacer also includes an adhesive to allow the protector to be attached to and removed from the device. Id. A preferred embodiment is depicted in the '942 patent:
Id., Fig. 1C. The ’942 patent has one independent claim and fourteen (14) dependent claims. Claim 1 is the sole independent claim:
1. A touch screen protector for a hand held electronic device having a front face that includes a touch screen portion and an outer perimeter comprising:
a plastic film having front and back sides, an outer perimeter that corresponds to that of the device, and a transparent window that corresponds in size to the touch screen portion; and
a spacer provided along the outer perimeter of the plastic film continuously surrounding the transparent window, having a thickness sufficient to space the plastic film near but not in contact with the touch screen portion, and an exposed adhesive for removably mounting the protector upon the outer perimeter of the front face to form an enclosed air space between the transparent window of the plastic film, the spacer and the touch screen portion of the device;
wherein the window can be pressed against the touch screen portion for operation of the electronic device while preventing direct contact of a user's fingers with the touch screen portion and without ...