Conditional Cross-Appeal Challenging Claim Construction Not Permitted

A party who prevails on a judgment of non-infringement has no right to file a conditional cross-appeal seeking review of claim construction rulings in the event of reversal of the judgment of non-infringement. That was the holding of the U.S. Court of Appeals for the Federal Circuit in Nautilus Group, Inc. v. ICON Health and Fitness, Inc., Case. No. 05-1603 (Fed. Cir. Feb. 15, 2006) (per curiam) (Newman, J.; dissenting).

Nautilus appealed from the district court’s judgment in favor of ICON’s counterclaim for non-infringement, and ICON filed a cross-appeal seeking conditional review of certain unappealed terms in the district court’s claim construction decision in the event of a reversal of the judgment. Nautilus moved to dismiss the cross-appeal.