A trial Judge is in charge of the case and any ORDERS issued by the judge while moving the case along are not appealable UNLESS, the ORDER materially and substantivly affects the rights of the claimant...

I will give you an example:...

John was a Supervising Technician in charge of 25 Techs working at a TV CABLE company.

He was fired from his job of 20 years because he refused to keep tabs on his Techs who were trying to organize a Union, and report to the employer.

We filed a wrongful termination case in the Superior Court. They hired an excellent Labor Lawyer from San Francisco who after taking few depositions file a Motion for Summary Judgment claiming John had no case because the National Labor Relations Act pre-empted the field and local Courts Lack Jurisdiction. The local Judge issued an Order dismissing John's case.

On appeal we asserted that the ORDER of dimissal was unlawful in that John was not a party to the Labor controversy between the employer and his Techs, thus his wrongful termination claim based on contract of employment was enforceable in State Courts . The ORDER was reversed and he case settled after they lost their appeal all the way to Supreme Court...

John's story is aimed at clarifying the issue that ORDERS issued by trial Judges can be appealed under limited set of facts.

DM's Response is clear that DM diagrees with the ORDER issued by the judge. However, DM is willing to live with the ORDER if the judge issues another ORDER which expresses the Court's view of claim 5 of 737 patent.

If the Judge sticks with her "Inference" that parties had stipulated her RULING on the 2 tried claims during the MH was "Dispositive" of the whole case, and refuse to issue the ORDER requested byy DM on 737 then, DM will file an appeal with the 10th Circuit as it would be a waste of Court's and everyone's time to go through th trial mpotions and expect the jury to issue a TAKE NOTHING under the compultion of the wrong instructions given to the jury by the Court.

On the other hand, if this Judge agrees with DM and issues a favorable Order as DM requests, then the parties can proceed with the trial and be involved in settlements.

Hope this helps.

Gil...