Orthotic Rehabilitation Products, Inc., Plaintiff-appellee, v. Restorative Care of America Incorporated, Defendant-appellant, 56 F.3d 83 (Fed. Cir. 1995)

ORDER

The court considers, sua sponte, whether Restorative Care of America Incorporated's appeal should be dismissed without prejudice to later reinstatement.

On June 17, 1994, Restorative Care's appeal was stayed pending reexamination of the patents at issue in the Patent and Trademark Office. On March 23, 1995, Restorative Care was directed to file status reports that reflected at what stage the PTO reexamination proceedings were. The April 10, 1995 report did not provide the requested information. On May 2, 1995, we directed Restorative Care to supply such information in its next status report and stated that the appeal would be dismissed without prejudice thereafter if the PTO proceeding appeared to have no definitive timetable. The court has not received the requested information.

We note further that on May 2, 1995, we directed Orthotic Rehabilitation Products, Inc. to notify the court within 10 days if it desired to have its cross-appeal restored. Orthotic Rehabilitation responds that it will seek reinstatement of its cross-appeal only if this court does not dismiss Restorative Care's appeal.

Accordingly,

IT IS ORDERED THAT:

(1) Restorative Care's appeal is dismissed without prejudice to later reinstatement. If Restorative Care wishes to restore its appeal, it must file a notice to that effect within 30 days of issuance of the PTO's final reexamination decision.

(2) If Orthotic Rehabilitation wishes to restore its cross-appeal, it must file a notice to that effect within 14 days of Restorative Care's notice.

(3) Each side shall bear its own costs.

(4) The revised official caption is reflected above.