Minnesota Mining and Manufacturing Company, Plaintiff-respondent, v. Johnson & Johnson Orthopaedics Inc., Defendant-petitioner, 907 F.2d 157 (Fed. Cir. 1990)

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U.S. Court of Appeals for the Federal Circuit - 907 F.2d 157 (Fed. Cir. 1990) May 24, 1990

Before RICH, Circuit Judge, and COWEN, and SKELTON, Senior Circuit Judges.


RICH, Circuit Judge.

Johnson & Johnson Orthopaedics, Inc. (J & J) petitions for permission to appeal the April 20, 1990 order certified for immediate appeal pursuant to 28 U.S.C. § 1292(b), (c) by the United States District Court for the District of Minnesota. Minnesota Mining and Manufacturing Company (3M) opposes the petition.

On December 31, 1986, the Minnesota district court found venue proper in its district under 28 U.S.C. § 1400(b) as a result of J & J's permanent and continuous presence in the state, even though it had no fixed physical facility there. More than three years later, J & J contested this venue decision.

On April 20, 1990, the district court certified its December 31, 1986 order as one involving a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation.

We decline, in our discretion, to grant J & J's petition. We note in particular that almost three and half years have passed from the time of the venue ruling and that discovery has been concluded and the case is ready for trial.



J & J's petition for permission to appeal is denied.