David D. Stark, M.d., Plaintiff-petitioner, v. Advanced Magnetics, Inc., Jerome Goldstein, Ernest V.groman, and Lee Josephson, Defendants-respondents, 79 F.3d 1165 (Fed. Cir. 1996)

ORDER

David D. Stark, M.D. petitions for permission to appeal the October 11, 1995 order certified by the United States District Court for the District of Massachusetts as 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. § 1292(b), (c) (1). Stark states that Advanced Magnetics, Inc., Jerome Goldstein, Ernest V. Groman, and Lee Josephson (collectively Advanced Magnetics) consent.

The district court did not set forth a specific controlling question of law. Stark characterizes the question as the following:

[Whether] the District Court erred in ruling that an omitted inventor may not seek correction pursuant to [35 U.S.C.] § 256, despite his own lack of deceptive intent, if the named inventors acted with deceptive intent.

This court must make its own determination whether it will accept an interlocutory appeal pursuant to § 1292(b) and (c) (1). See In re Convertible Rowing Exerciser Patent Litigation, 903 F.2d 822 (Fed. Cir. 1990). Such a ruling is within this court's complete discretion. Id. In this case, we conclude that the order meets the statutory criteria and that permissive appeal is warranted. Further, the district court and the parties wish for the court to address the relevant issues.

Accordingly,

IT IS ORDERED THAT:

Stark's petition for permission to appeal is granted.