NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

05-1510 REVOLUTION EYEWEAR, INC., Plaintiff/Counterclaim Defendant-

Appellant, and GARY MARTIN ZELMAN, Counterclaim Defendant,

v.

ASPEX EYEWEAR, INC. and NONU IFERGAN, Defendants/Counterclaimants- Appellees.

__________________________ DECIDED: May 12, 2006

__________________________

Before SCHALL, Circuit Judge , CLEVENGER, Senior Circuit Judge , and PROST, Circuit Judge

. SCHALL, Circuit Judge

.DECISION Revolution Eyewear, Inc. (“Revolution”) appeals the decision of the United States District Co urt for the Central District of California awarding Aspex Eyewear, Inc. (“Aspex”) attorney’s fees in the amount of $256,108.14 pursuant to 35 U.S.C. § 285. Revolution Eyewear, Inc. v. Aspex Eyewear, Inc. , No. 03-5965 (C.D. Cal. May 2, 2005) (“ Attorney’s Fees Decision ”). We dismiss for lack of juris d iction. DISCUSSI ON
I. On August 21, 2003, Revolution sued Aspex in the Central District of California for infringement of U.S. Pa tent No. 6,550,913 B2 (“the ’913 patent”), which relates to auxiliary eyeglasses. In response, Aspex filed count erclaims of declaratory judgment that it does not infringe the ‘ 913 patent, that the ‘9 13 p a tent is inv a lid, and that the ‘913 patent is unenforceable due to inequitable c onduct during prosecution of the patent. In due course, Aspex moved for partial summa ry judgment that all six c l aims of the ‘913 patent were invalid as antic ipated and unenforceable due to inequitable conduct. On March 7, 2005, the district c ourt granted summary judgment in favor of Aspex that claims 1- 6 of the ’913 pat ent were inv a lid as anticipated. Revolution Eyewear, Inc. v. Aspex Ey ewear, Inc. , No. 03-5965 (C.D. Cal. Mar. 7, 2005). The cour t then explained that As pex’s c ount erclaim for unenforceability due to ine quitable cond uct
was moot. Id. , slip. op. at 20. On March 18, 2005, the district court issued its judgment invalidating the ‘913 patent and dismissing Aspex’s counter claims of infringement and unenforceability without prejudice as moot. Revolution Eyewear, Inc. v. Aspex

05-1510 2Eyewear, I n c. , No. 03-5965 (C.D. Cal. Mar. 18, 2005) . On March 23, 2005, Revolution filed its notice of appeal of the summary judgment decision. On April 5, 2005, Aspex moved for attorney’s fees. On May 2, 2005, the dist rict court found inequitable conduc t in the pros ecution of the ‘913 patent and granted Aspex’s m o tion for attorney’s fees. Attorney’s Fees Decis i on . On July 1, 2005, the district court awarded Aspex attorney’s fees of $256,108.14 wit h interest. Revo lutio n Eyewear, Inc. v. Aspex Ey ewear, Inc. , No. 03-5965 (C.D. Cal. July 1, 2005). The court declared that “[t]he judgment entered on M a rch 18, 2005 is amended nunc pro tunc to reflect the Court’s award.” Id. , slip op. at 15. Revolution then filed its notice o f appeal of the attorney’s fees decision. On March 30, 2006, t h is court v a cated th e decis ion of the distric t court holding the claims of the ‘913 patent invalid and remanded the case to the district court for further proceedings. Revolution Eyewear , Inc. v. A s pex Ey ewear, Inc. , No. 05-1329, 2006 U.S. App. LEXI S 7935 (Fed. Cir. Mar. 30, 2006) (“ Revolu tion I ”). The mandat e issued to the district court on April 20, 2006.
II. For the following reasons, we dismiss Revo lution’s appeal for lack of jurisdiction. We review as a matter of law the i ssue of our juri sdi c tion, even if it is not raised by the parties. See Bender v. Williams port Area Sch. Dist. , 475 U.S. 534, 541 (1986) ; Pandrol USA, LP v. Ai rboss Ry . Prods., Inc. , 320 F.3d 1354, 1362 (Fed. Cir. 2003). This court has jurisdic tion over a final decision of a district court pursuant to 28 U.S.C. § 1295(a)(1) (“The U n ited States Court of Appea ls for the Federal Circuit shall hav e

exc l usiv e jurisdiction. . . of an appeal from a final decision of a district court . . . .”

05-1510 3(emphasis added)). A “final judgment” is one that “‘ends the litigat ion on the merits and leaves not hing for the court to do but execut e the judgment.’” Nystrom v

. Trex Co. , 339 F.3d 1347, 1350 (Fed. Cir. 2003) (quoting Catlin v. United States , 324 U.S. 229, 233 (1945)); see also Pause Tech. LLC v. TiVo Inc. , 401 F.3d 1290, 1292-94 (Fed. Cir. 2005) (recogniz i ng that this court did not ha ve jurisdiction over an appeal because an invalidity c ounterclaim remained pending bef ore the district court and there had not been a cer t ification under Feder al Rule of Civil Procedure 54(b)). “If a case is not fully adjudicated as to all c l aims for all parties and there is no expres s determination that there is no just reason for delay or expres s direction for entry of judgment as to fewer than all of the parties or claims, there is no ‘final decis ion’ under 28 U.S.C. § 1295(a)(1) and therefore no jurisdiction.” Nystrom , 339 F.3d at 1350. There is no final judgment in this case. In view of this court’s March 30, 2006 decision in Revolution I , and in v i ew of the issuance of the mandate on April 20, 2006, there is no longer a final judgment in the di strict court because validity and infringement are still pending there

. Both Revolution an d As pex arg u e that the court has jurisdictio n over this appeal bec ause there is a final j udgment by reason of the di strict court’s finding of inequitable conduct. C ontrary to the parties’ argum ents, however, there is no final judgment. That i s because a finding of inequitable conduct is not a judgment of unenforceability, and no judgment of unenforceability has been entered in this case. The district court’s July 1, 2005 decis ion amending it s March 18, 2005 decision nunc pro tunc to reflect its award of attorney’s fees does not alter this result. Nunc pro
tunc applies to an earlier decis ion when the court in tended then to do what it did later. See United States v. Sumner , 226 F.3d 1005, 1009-10 (9th Ci r. 2000). That is not what

05-1510 4happened here. On March 18, 2005, it was the int ent of the district court to dismiss the counterclaim of unenforceability. T he district court’s statement of nunc pro tunc on July 1, 2005, only amended the March 18, 2005 decision to add an award of attorney’s fees. Further, even if there had been a judgment of inequitabl e conduc t, as opposed to a findin g , there wou l d still not be a final jud g ment in this case b e cause, in view of this court’s March 30, 2006 decision vacating th e judgment of invalidity and remandin g the invalidity and infringement issues, see Re volution I , non-adjudicated claims remain before the district court. Ther e is no final judgment in this case because those claims are pending before the district court.
III. For the foregoing reasons, we dismiss this case for lack of jurisdiction beca use there is no final judgm ent. The district court currently has bef ore it Revolution’s claim of infringement, Aspex’s counterclaim of invalidit y, and Aspex’s affirmative defenses. If, on remand, Aspex chooses to pursue its counterclaims of noninfringement and unenforceability, the district court should reinstate those counterclaims. After hearing from the parties, the court may proceed, as appropriate, to adjudicate one or more of the several matters before it. The parties should b e a r in mind that this court will on ly have jurisdiction over any future appeal if there has been a final judgment on all claims or if there has been an entry of judgment on less than al l of t he claims pursuant to Federal Rule of Civil Procedure 54(b). 1 Each party shall bear its own costs.

1 Alternatively, non-adjudicated claims may be dismissed without prejudice. See Nystrom , 339 F.3d at 1351 n.*.

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