Thank you for your post.

Yesterday I attempted to point out that FRAP # 3 (c) (1) (B) clearly provided that besides the Judgments entered, the ORDERS and Parts thereof could also be appealed...

The question that confronts DM right now is whether or not he should file an Appeal directly with the 10th Circuit, arguing that the UNDECISION has materially affected the outcome of the case, as it conclusively determines the validity of the patent...

Rules of Law are not etched in stone. There is no such a thing as you absolutely can not appeal a case until and after there is a Judgment and has been entered. In fact FRAP # 3 (c) (1) (B) which I posted yesterday says the opposite to be true.

As the case you cited points out, if ( " 1. the outcome of the case would be conclusively determined by the issue.") is a recognition by the Supreme Court that the general principle that no appeals be taken till there is a judgment and it is entered is no more that an attempt by the Courts to limit the amount of appeals to when there is a case and controversy, thus streamlining the work load of an understaffed and overloaded Courts of Appeal. On the other hand if an ORDER, or Un-decision, as in this case, that has decided material issues which would conclusively determine the outcome of the case, then an appeal is permitted, in order to stop all the wated time an effort in moving a case to a judgment, knowing full well what the outcome shall be...

This Judge has ruled that the patent does not do what is claimed. She states cleary in her decision that her decision is closer to defendants position and wants to know what the parties have to say...

Assuming that she has read all the things Doni has said here, I doubt she is going to change here mind. Thus it is 8 months later and we are in the Court room and she gives instructionS to the Jury saying, " I have ruled the patent invalid, now you go in jury room and decide what defendants owe plaintiff?!?"...

GLTA...

Gil...