Modern Font Applications LLC v. Alaska Airlines

Case: 21-1838    Document: 53    Page: 1   Filed: 12/29/2022




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

        MODERN FONT APPLICATIONS LLC,
               Plaintiff-Appellant

                            v.

                ALASKA AIRLINES, INC.,
                    Defendant-Appellee
                  ______________________

                        2021-1838
                  ______________________

     Appeal from the United States District Court for the
 District of Utah in No. 2:19-cv-00561-DBB-CMR, Judge
 David Barlow.
                 ______________________

                Decided: December 29, 2022
                  ______________________

     PERRY S. CLEGG, Johnson & Martin, P.A., Salt Lake
 City, UT, argued for plaintiff-appellant.

    SHAWN G. HANSEN, Nixon Peabody LLP, Los Angeles,
 CA, argued for defendant-appellee. Also represented by
 SARAH ANDRE, SETH D. LEVY; ERIN HUNTINGTON, Albany,
 NY.
                 ______________________

    Before NEWMAN, REYNA, and CUNNINGHAM, Circuit
                      Judges.
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 2         MODERN FONT APPLICATIONS LLC      v. ALASKA AIRLINES



 Opinion for the court filed by Circuit Judge CUNNINGHAM.
     Dissenting opinion filed by Circuit Judge NEWMAN.
 CUNNINGHAM, Circuit Judge.
     Modern Font Applications LLC seeks an interlocutory
 appeal to challenge an order of the United States District
 Court for the District of Utah, which affirmed a magistrate
 judge’s decision deeming MFA’s in-house counsel a “com-
 petitive decisionmaker” and maintaining Alaska Airlines,
 Inc.’s Attorneys’ Eyes Only designations as to its source
 code. Mod. Font Applications v. Alaska Airlines, No. 19-cv-
 00561, 

, at *1 (D. Utah Feb. 3, 2021)
 (“Magistrate Decision”), aff’d sub nom. Mod. Font Applica-
 tions LLC v. Alaska Airlines Inc., 

 (D.
 Utah Mar. 2, 2021) (“District Court Order”). Because we
 lack jurisdiction over MFA’s interlocutory appeal under the
 collateral order doctrine, we dismiss.
                       I.     BACKGROUND
      To avoid unnecessary delay from parties arguing or lit-
 igating the form of a protective order, the District of Utah
 found good cause exists to adopt a “Standard Protective Or-
 der” 1 in every case. D.U. Civ. R. 26-2(a). 2 Pursuant to that
 protective order, Alaska designated certain source code
 files     as    “CONFIDENTIAL          INFORMATION           –
 ATTORNEYS’ EYES ONLY,” which precluded MFA’s in-
 house counsel from accessing those materials under the
 Standard Protective Order.          J.A. 74, 79; Standard



     1   The District of Utah’s Standard Protective Order is
 available at: https://www.utd.uscourts.gov/sites/utd/files/S
 tandard_Protective_Order.pdf.
     2   The District of Utah’s Local Rules of Civil Practice,
 effective    December      2021,     are    available     at:
 https://www.utd.uscourts.gov/sites/utd/files/Dec%202021%
 20Civil%20Rules.pdf.
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 MODERN FONT APPLICATIONS LLC     v. ALASKA AIRLINES           3



 Protective Order at 9–11. When MFA challenged Alaska’s
 designations, Alaska filed two motions to maintain its pro-
 tective order designations. J.A. 73–76, 98–100. Before the
 court could resolve those motions, MFA filed Short Form
 Discovery Motion #4 to Amend the Standard Protective Or-
 der, seeking to permit its in-house counsel to access “all
 disclosed information,” including documents designated
 Attorneys’ Eyes Only and to add additional designations to
 the Standard Protective Order specific to source code.
 J.A. 109–11, 115–37. At the magistrate judge’s direction,
 the parties filed supplemental briefing to address the bur-
 den of proof required to maintain an Attorneys’ Eyes Only
 designation and the standards for evaluating competitive
 decisionmaking. J.A. 21–22, 191–93 (MFA briefing),
 241–47 (Alaska briefing).
     The magistrate judge granted Alaska’s motions to
 maintain its protective order designations and denied
 MFA’s motion to amend the protective order. Magistrate
 Decision, at *4–6. The magistrate judge found that Alaska
 had established that its source code contained trade secrets
 and merited “heightened protection.” Id. at *4. The mag-
 istrate judge also declined to modify the protective order
 and permit MFA’s in-house counsel to access Attorneys’
 Eyes Only documents because “the risk of inadvertent dis-
 closure [of Alaska’s confidential information] outweighs
 the risk of prejudice to Plaintiff.” Id. at *6. In doing so, the
 magistrate judge concluded that MFA’s in-house counsel
 was a “competitive decisionmaker” because of his licensing
 activities and because MFA’s “entire business model re-
 volves around the licensing of patents through litigation
 with the assistance of its in-house counsel.” Id. at *5.
     The district court issued an order affirming the magis-
 trate judge’s decision. District Court Order, at *1–3. The
 district court explained that it would only modify or set
 aside the magistrate judge’s non-dispositive order “if it is
 contrary to law or clearly erroneous.” Id. at *1. The district
 court affirmed the magistrate judge’s decision to maintain
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 4         MODERN FONT APPLICATIONS LLC      v. ALASKA AIRLINES



 Alaska’s protective order designations, explaining case law
 supported that “district courts regularly provide for addi-
 tional restrictions on discovery to account for the unique
 characteristics of source code” and that MFA had “not iden-
 tified any authority demonstrating otherwise.” Id. at *3.
 The district court also affirmed the magistrate judge’s de-
 cision declining to amend the protective order, explaining
 that MFA had failed to cite case law supporting its argu-
 ment that it should not bear the burden of proof to modify
 the Standard Protective Order. Id. at *2. The district court
 stated that the magistrate judge properly evaluated MFA’s
 counsel’s activities, including his competitive decision-
 making, as required by our decision in U.S. Steel Corp. v.
 United States, 

 (Fed. Cir. 1984). District
 Court Order, at *2. The district court further explained
 that the magistrate judge had appropriately cited cases
 “for their relevance to in-house counsel’s involvement in li-
 censing making it a competitive decisionmaker.” Id. at *3.
 In summary, the district court agreed that the magistrate
 judge’s decision “is not contrary to law” or “clearly errone-
 ous.” Id.
     MFA seeks an interlocutory appeal of this order.
                        II.   DISCUSSION
     MFA argues that we should hear its interlocutory ap-
 peal under the collateral order doctrine. Appellant’s Br.
 16–26. We disagree and conclude that we lack jurisdiction.
                A. The Collateral Order Doctrine
     Congress limited our jurisdiction to any appeal from a
 “final” decision of a district court “arising under[] any Act
 of Congress relating to patents,” with only limited excep-
 tions. 

(a)(1); see Bd. of Regents of the Univ.
 of Tex. Sys. v. Bos. Sci. Corp., 

, 1370 (Fed.
 Cir. 2019). Under the “final judgment rule,” “a party may
 not appeal ‘until there has been a decision by the district
 court that ends the litigation on the merits and leaves
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 MODERN FONT APPLICATIONS LLC    v. ALASKA AIRLINES          5



 nothing for the court to do but execute the judgment.’” Bd.
 of Regents, 936 F.3d at 1370 (quoting Robert Bosch, LLC v.
 Pylon Mfg. Corp., 

 (Fed. Cir. 2013) (en
 banc)).
      The collateral order doctrine is a practical construction
 of the final judgment rule that permits review of not only
 judgments that “terminate an action,” but also the “small
 class” of collateral rulings that are appropriately deemed
 “final.” Mohawk Indus., Inc. v. Carpenter, 

 (2009) (citing Cohen v. Beneficial Indus. Loan Corp.,
 

, 545–46 (1949)). Courts of appeals may allow
 interlocutory appeals of decisions that (1) are “conclusive;”
 (2) “resolve important questions separate from the merits;”
 and (3) are “effectively unreviewable on appeal from the fi-
 nal judgment in the underlying action.” Swint v. Chambers
 Cnty. Comm’n, 

 (1995) (citing Cohen, 

).
     The Supreme Court has repeatedly emphasized the
 limited scope of the collateral order doctrine, explaining
 that it should “never be allowed to swallow the general rule
 that a party is entitled to a single appeal, to be deferred
 until final judgment has been entered.” Mohawk, 

 (quoting Digit. Equip. Corp. v. Desktop Direct, Inc.,
 

 (1994)); see also Will v. Hallock, 

 (2006) (“emphasizing [the doctrine’s] modest
 scope”). The limited application of the collateral order doc-
 trine reflects the important policy concerns that “piecemeal
 appeals would undermine the independence of the district
 judge” and hinder judicial efficiency. Firestone Tire & Rub-
 ber Co. v. Risjord, 

 (1981); see also 15B C.
 Wright, A. Miller, & E. Cooper, Federal Practice and Pro-
 cedure § 3914.23 (2d ed. Apr. 2022 update) (“Routine ap-
 peal from disputed discovery orders would disrupt the
 orderly progress of the litigation, swamp the courts of ap-
 peals, and substantially reduce the district court’s ability
 to control the discovery process.”).
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 6         MODERN FONT APPLICATIONS LLC      v. ALASKA AIRLINES



     Generally, pretrial discovery orders are not “final”—
 and therefore, not reviewable—under the collateral order
 doctrine. Firestone Tire, 

 (“[W]e have gen-
 erally denied review of pretrial discovery orders.”); see also
 15B C. Wright, A. Miller, & E. Cooper, Federal Practice and
 Procedure § 3914.23 (2d ed. Apr. 2022 update) (“[T]he rule
 remains settled that most discovery rulings are not final.”).
 Such discovery orders are generally unreviewable under
 the third requirement of the collateral order doctrine be-
 cause they can be adequately reviewed after a final judg-
 ment.
     When faced with similar pretrial discovery orders, we
 have held that they are not appealable under the collateral
 order doctrine. For example, in Quantum Corp. v. Tandon
 Corp., we granted Quantum’s motion to dismiss an inter-
 locutory appeal to review an order granting a motion to
 compel disclosure of attorney opinion letters. 

,
 643–44 (Fed. Cir. 1991). In doing so, we noted that:
     [I]t is settled that discovery orders issued within
     the context of a primary proceeding are generally
     not appealable orders. In addition to not complying
     with the third requirement of the Cohen doctrine,
     such discovery orders may present issues not com-
     pletely separate from the merits and thus the or-
     ders are not truly collateral under the second
     requirement of the Cohen doctrine.
 

 at 644 n.2 (citation omitted). And in Amgen Inc. v. Hos-
 pira, Inc., we held that we lacked jurisdiction to review an
 order denying a motion to compel disclosure of cell-culture
 information. 

, 1358–60 (Fed. Cir. 2017).
 There, we again stated that “[s]uch orders are not review-
 able at the interlocutory stage because they are reviewable
 from a final judgment.” 

.
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 MODERN FONT APPLICATIONS LLC    v. ALASKA AIRLINES           7



              B. MFA’s Appeal Must Be Dismissed
     MFA’s appeal does not satisfy the third requirement of
 the collateral order doctrine because it is reviewable after
 a final judgment. See Swint, 

. Numerous
 cases have ruled that such discovery orders are outside ap-
 pellate jurisdiction because they can be reviewed after final
 judgment. See, e.g., Mohawk, 

; Fire-
 stone Tire, 449 U.S. at 377–78; Quantum, 

;
 Amgen, 866 F.3d at 1359–60.
      MFA argues it will be “irreparably prejudic[ed] . . .
 both financially and in its ability to effectively evaluate and
 prosecute its claims” if the district court’s order stands and
 interlocutory appeal is denied. Appellant’s Br. 24–25,
 36–38. MFA further contends that it “will suffer prejudice
 in the form of one of its key strategists and analysts being
 effectively removed from large portions of this case.” Ap-
 pellant’s Br. 36. This prejudice, MFA contends, would be
 unlikely to serve as “ground for reversal of any adverse de-
 cision.” Appellant’s Br. 25, 36. MFA’s prejudice arguments
 are unavailing.
      The collateral order doctrine asks whether the order at
 issue would be “effectively unreviewable” in an appeal fol-
 lowing final judgment, not whether the appellant would be
 unlikely to succeed when it later appeals. See Swint, 

. Even assuming MFA would be unlikely to se-
 cure reversal on final appeal, that is insufficient to satisfy
 the third requirement. See Mohawk, 

 (affirming Eleventh Circuit’s judgment dismissing appeal
 for lack of jurisdiction under collateral order doctrine de-
 spite recognizing “[m]ost district court rulings on [discov-
 ery] matters . . . are unlikely to be reversed on appeal”).
   Moreover, it is far from clear MFA will suffer prejudice.
 MFA has access to outside counsel, and MFA could hire
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 8         MODERN FONT APPLICATIONS LLC      v. ALASKA AIRLINES



 experts to support its technical analysis. 3 See J.A. 37. Any
 “prejudice” alleged by MFA from its in-house counsel lack-
 ing access to certain documents is merely speculative until
 a final judgment is complete. See Richardson-Merrell, Inc.
 v. Koller, 

 (1985). And any evaluation of
 that prejudice would be intertwined with the merits of the
 case, violating the second requirement of the collateral or-
 der doctrine. 

 at 439–40.
     Nor do we agree with MFA’s argument about financial
 prejudice. Even if MFA were to suffer financial hardship
 from the district court’s order here, that financial interest
 is “not sufficient to set aside the finality requirement im-
 posed by Congress.” Richardson-Merrell, Inc., 

. In Richardson-Merrell, the Supreme Court recognized
 that erroneous disqualification of a client’s counsel—a far
 greater burden than would occur here—“imposes financial
 hardship on both the disqualified lawyer and the client.”
 

 Nevertheless, the court declined to allow an interlocu-
 tory appeal to permit review of the disqualification order.
 

 at 436–40. At bottom, MFA does not qualify for an in-
 terlocutory appeal. 4



     3    The magistrate judge considered the prejudice to
 MFA before excluding its in-house counsel from accessing
 Attorneys’ Eyes Only materials, concluding that “[e]ven if
 reliance on outside counsel and experts causes some finan-
 cial hardship, the normal burdens of patent litigation are
 insufficient to outweigh the significant risk of inadvertent
 disclosure of confidential information in this case.” Magis-
 trate Decision, at *6.
     4   The cases cited by the dissent are inapposite. They
 do not say that we have discretion to ignore the require-
 ments of the collateral order doctrine. First, most concern
 

(b), which explicitly provides that federal
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 MODERN FONT APPLICATIONS LLC   v. ALASKA AIRLINES          9



     Where we have found jurisdiction under the collateral
 order doctrine, we have usually done so to address some
 harm that cannot be undone on appeal from a final judg-
 ment. For example, where a district court denied requests
 to seal certain information, we applied the collateral order
 doctrine to permit interlocutory appeal because, among
 other things, “once the parties’ confidential information is
 made publicly available, it cannot be made secret again.”
 Apple Inc. v. Samsung Elecs. Co., 

 (Fed. Cir. 2013) (considering appeal of order “denying re-
 quests to seal various confidential exhibits attached to pre-
 trial and post-trial motions”); see also DePuy Synthes
 Prods., Inc. v. Veterinary Orthopedic Implants, Inc., 

 (Fed. Cir. 2021) (considering interlocutory




 courts of appeals have discretion to decline to hear certain
 appeals—unlike § 1295, which governs our jurisdiction
 here and does not provide discretion. Blackie v. Barrack,
 

 (9th Cir. 1975); A. Olinick & Sons v.
 Dempster Bros., Inc., 

 (2d Cir. 1966);
 ICTSI Or., Inc. v. Int’l Longshore & Warehouse Union, 

 (9th Cir. 2022); In re Convertible Rowing
 Exerciser Pat. Litig., 

 (Fed. Cir. 1990);
 Moorman v. UnumProvident Corp., 

 (11th Cir. 2006). Second, two cases conclude that denials
 of immunity from suit are immediately appealable—an ap-
 proach the Supreme Court endorsed because denials of im-
 munity meet the requirements of the collateral order
 doctrine. See Bd. of Regents, 936 F.3d at 1371–72; Metlin
 v. Palastra, 

 (5th Cir. 1984); see also
 Mitchell v. Forsyth, 

, 525–27 (1985). Finally,
 the remaining cases that analyze jurisdiction under the col-
 lateral order doctrine required that the doctrine’s prereq-
 uisites be met before the courts would exercise
 jurisdiction—exactly as we do here.
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 10        MODERN FONT APPLICATIONS LLC     v. ALASKA AIRLINES



 appeal of order unsealing amended complaint). No such
 dire circumstances exist here.
      Notably, this case does not involve whether Alaska’s
 information should be sealed or unsealed, but rather
 whether its information could be disclosed to MFA’s in-
 house counsel, which is an entirely different issue. Moreo-
 ver, the district court did not permit disclosure of Alaska’s
 confidential information to MFA’s in-house counsel, in-
 stead protecting that information by denying MFA’s in-
 house counsel access. Because there is no risk Alaska’s in-
 formation will be revealed to an improper recipient, the dis-
 trict court’s order does not fall within the “small class” of
 collateral rulings appropriate for appellate review.
     Importantly, parties routinely raise discovery disputes
 multiple times throughout a lawsuit. Protective order is-
 sues represent only a small subset of the many discovery
 disputes district courts resolve. To permit MFA’s interloc-
 utory appeal here would encourage parties to “unduly de-
 lay the resolution of district court litigation and needlessly
 burden” this court by seeking appellate review of any pre-
 trial discovery dispute in any patent case. See Mohawk,
 

.
                       III.   CONCLUSION
     Accordingly, we dismiss MFA’s interlocutory appeal for
 lack of jurisdiction under the collateral order doctrine.
                        DISMISSED
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    United States Court of Appeals
        for the Federal Circuit
                   ______________________

        MODERN FONT APPLICATIONS LLC,
                Plaintiff-Appellant

                              v.

                ALASKA AIRLINES, INC.,
                    Defendant-Appellee
                 ______________________
                         2021-1838
                ______________________
    Appeal from the United States District Court for the
 District of Utah in No. 2:19-cv-00561-DBB-CMR, Judge
 David Barlow.
                  ____________________

 NEWMAN, Circuit Judge, dissenting.
     The panel majority holds that we do not have jurisdic-
 tion to consider this appeal of the district court’s eviden-
 tiary ruling. However, our authority to review this ruling
 is not a matter of appellate jurisdiction, but of appellate
 discretion. A court’s jurisdiction is established by statute,
 and the question concerning this particular protective or-
 der is within our jurisdiction and subject to our discretion
 to review and resolve.
     I believe that in the circumstances hereof it is prefera-
 ble to exercise this discretion and decide the question
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 2          MODERN FONT APPLICATIONS LLC    v. ALASKA AIRLINES



 concerning this protective order. Nonetheless, the panel
 majority holds that we do not have jurisdiction, and rele-
 gates our decision of this aspect until after final judg-
 ment—thus creating inefficiency and possible injustice. I
 respectfully dissent.
                        DISCUSSION
                               I
     We have jurisdiction to review this protective
     order at this stage of trial proceedings
     Jurisdiction is a rigorous concept, for it establishes “a
 tribunal’s power to hear a case, a matter that can never be
 forfeited or waived.” Union Pac. R.R. Co. v. Brotherhood of
 Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment,
 Cent. Region, 

 (2009) (quoting United States
 v. Cotton, 

 (2002)). The Supreme Court
 explained:
      Recognizing that the word “jurisdiction” has been
      used by courts, including this Court, to convey
      “many, too many, meanings,” Steel Co. v. Citizens
      for Better Environment, 

 (1998), we
      have cautioned, in recent decisions, against profli-
      gate use of the term. Not all mandatory “prescrip-
      tions, however emphatic, are . . . properly typed
      jurisdictional,” we explained in Arbaugh v. Y & H
      Corp., 

.
 

 (citations omitted). The Court has discussed the differ-
 ence between subject matter jurisdiction and a claim-pro-
 cessing matter, see Kontrick v. Ryan, 

 (2004), and the distinction between a court’s jurisdiction
 founded on legislative action, and a court’s discretion to act
 on matters within its jurisdiction. See Bowles v. Russell,
 

, 211–12 (2007) (“This Court’s treatment of its
 certiorari jurisdiction also demonstrates the jurisdictional
 distinction between court-promulgated rules and limits en-
 acted by Congress.”).
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 MODERN FONT APPLICATIONS LLC     v. ALASKA AIRLINES           3



     Appellate courts have jurisdiction to resolve issues that
 arise in cases within their appellate assignment. Appellate
 review is a matter of appellate discretion, as illustrated in
 Metlin v. Palastra, 

 (5th Cir. 1984) (“Our
 jurisdiction can, in the interest of judicial economy, extend
 as a matter of discretion to review of the closely related de-
 nial of qualified immunity.”). See also, e.g., Blackie v. Bar-
 rack, 

, 900 (9th Cir. 1975) (“Because the record
 is hazy, because we have granted the extensions, and be-
 cause the issues have now been briefed and argued and are
 ripe for decision, we think the preferable course is for us to
 decide the appeal and provide guidance to the trial court.”).
 In A. Olinick & Sons v. Dempster Bros., Inc., 

 (2d Cir. 1966) the appellate court discussed its discretion
 to accept or reject a certified question and applicability of
 the writ of mandamus, and stated that “the Court of Ap-
 peals has total discretion—akin to that exercised by the Su-
 preme Court on petitions for certiorari—in deciding
 whether or not to permit review.” 

.
      Protective orders concerning confidentiality and dis-
 covery have been reviewed, applying the standard of abuse
 of discretion. The court in SEC v. Merrill Scott & Assocs.,
 Ltd., 

 (10th Cir. 2010) stated that “or-
 dinarily requests to modify [a protective order] are directed
 to the district court’s discretion and subject to review only
 for abuse of discretion,” quoting 8 Charles Alan Wright, Ar-
 thur R. Miller & Richard L. Marcus, Federal Practice &
 Procedure § 2044.1 at 575–76 (2d ed. 1994), and stating:
 “We conclude that we have jurisdiction to address the mer-
 its of the challenged order of the district court.” Id. at 1270.
      Other circuits have acted similarly. E.g., SEC v.
 TheStreet.Com, 

, 228 (2d Cir. 2001) (conclud-
 ing that the appellate court has jurisdiction to review mod-
 ification of a protective order); Moorman v. UnumProvident
 Corp., 

 (11th Cir. 2006) (“Un-
 der § 1292(b), appellate review, even for certified ques-
 tions, is discretionary . . . . By extension, review by
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 4         MODERN FONT APPLICATIONS LLC     v. ALASKA AIRLINES



 appellate courts of noncertified questions is also discretion-
 ary.”).
     We discussed this discretion in In re Convertible Row-
 ing Exerciser Patent Litig., 

 (Fed. Cir. 1990):
     The granting of the appeal is also discretionary
     with the court of appeals which may refuse to en-
     tertain such an appeal in much the same manner
     that the Supreme Court today refuses to entertain
     applications for writs of certiorari.
 

. We explained that appellate review of an inter-
 locutory order is a matter of discretion:
     It should be made clear that if application for an
     appeal from an interlocutory order is filed with the
     court of appeals, the court of appeals may deny
     such application without specifying the grounds
     upon which such a denial is based. It could be
     based upon a view that the question involved was
     not a controlling issue. It could be denied on the
     basis that the docket of the circuit court of appeals
     was such that the appeal could not be entertained
     for too long a period of time. But, whatever the rea-
     son, the ultimate determination concerning the
     right of appeal is within the discretion of the appro-
     priate circuit court of appeals.
 

 (citing S. Rep. No. 2434 (1958), 85th Cong., 2d Sess. 3,
 4, reprinted in 1958 U.S.C.C.A.N. 5255).
     We have applied these principles to discovery matters.
 In In re Deutsche Bank Trust Co. Americas, 

 (Fed. Cir. 2010), we recited that “[f]inal decisions con-
 cerning discovery matters are reviewed by this court under
 the abuse of discretion standard.” See also Baystate Tech-
 nologies, Inc. v. Bowers, 

 (Fed. Cir. 2008)
 (per curiam) (reviewing denial of a motion to modify a pro-
 tective order, applying the standard of abuse of discretion).
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 MODERN FONT APPLICATIONS LLC    v. ALASKA AIRLINES           5



     The collateral order doctrine is a guide to dis-
     cretion, not a rule of jurisdiction
      The collateral order doctrine, on which the panel ma-
 jority relies, recites factors relevant to discretionary review
 of aspects within the court’s jurisdiction. See Kell v. Ben-
 zon, 

 (10th Cir. 2019) (“[T]he collateral-
 order doctrine would ordinarily apply only if an appellate
 court would probably not need to consider the merits a sec-
 ond time.”).
     Applying this guidance, in Board of Regents of the Uni-
 versity of Texas System v. Boston Scientific Corp., 

 (Fed. Cir. 2019), we held that a transfer order was
 immediately appealable, rather than requiring the appel-
 lant to wait for final judgment. Id. at 1370. In Apple Inc.
 v. Samsung Electronics Co., 

 (Fed. Cir. 2013),
 we exercised our discretion and accepted immediate appeal
 concerning the unsealing of certain discovery documents,
 reasoning that the harm of erroneous unsealing could not
 be undone if appeal were delayed. 

.
      The Supreme Court has explained that “[t]he collateral
 order doctrine is best understood not as an exception to the
 ‘final decision’ rule laid down by Congress in § 1291, but as
 a ‘practical construction’ of it.” Swint v. Chambers Cty.
 Comm’n, 

, 41–42 (1995) (quoting Dig. Equip.
 Corp. v. Desktop Direct, Inc., 

 (1994)); 

 (“tentative, informal, or incomplete” rulings are not imme-
 diately appealable)) (quoting Cohen v. Beneficial Indus.
 Loan Corp., 

 (1949)).
      Imprecise usage of “jurisdiction” is not a new phenom-
 enon, as the Court acknowledged in John R. Sand & Gravel
 Co. v. United States, 

 (2008) (“As conven-
 ient shorthand, the Court has sometimes referred to the
 time limits in such statutes as ‘jurisdictional.’”). My col-
 leagues appear to have adopted this convenient shorthand,
 for their holding that we do not have jurisdiction over this
 appeal is otherwise unsupported.
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 6         MODERN FONT APPLICATIONS LLC    v. ALASKA AIRLINES



                              II
     The Utah district court’s Standard Protective
     Order
      This appeal concerns designations by Alaska Air-
 lines under the Standard Protective Order of the Dis-
 trict of Utah, which authorizes parties to designate
 discovery items as “Attorneys Eyes Only” for the exclusion
 of in-house attorneys. 1 Alaska also seeks to preserve the
 confidentiality of its source code.
     The Standard Protective Order states the right of a
 party to challenge a confidentiality designation at any
 time:
     9. Challenge to Designation
     (a) Any receiving party may challenge a producing
     party’s designation at any time. A failure of any
     party to expressly challenge a claim of confidenti-
     ality or any document designation shall not consti-
     tute a waiver of the right to assert at any
     subsequent time that the same is not in fact confi-
     dential or not an appropriate designation for any
     reason.
     (b) Any receiving party may disagree with the des-
     ignation of…ATTORNEYS EYES ONLY…stating
     with particularity the reasons for the request… .
     The producing party shall…explain the reason for
     the particular designation and to state its intent to
     seek a protective order… .
     (c) …The burden of proving that the designation is
     proper shall be upon the producing party. . . .



 1   Available at: https://www.utd.uscourts.gov/sites/utd
 /files/Standard_Protective_Order.pdf.
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 MODERN FONT APPLICATIONS LLC    v. ALASKA AIRLINES          7



 The Utah local rules provide for appeal of Protective Order
 designations:
     Rule 26-2(a)(2). Any party or person who believes
     that substantive rights are being impacted by ap-
     plication of the [Standard Protective Order] rule
     may immediately seek relief. . . .
 Applying this rule, Modern Font Applications (MFA) chal-
 lenges Alaska’s “Attorneys Eyes Only” designations, MFA
 stating that it will be “irreparably prejudiced” in this liti-
 gation if its in-house counsel is denied access to Alaska’s
 confidential information. MFA draws analogy to the situ-
 ation in Osband v. Woodford, 

 (9th Cir. 2002),
 where the court held that it has jurisdiction to hear the ap-
 peal concerning a habeas petition, reasoning that “having
 never discussed the discovered materials with the ‘prose-
 cutorial personnel’ who prosecuted Osband, the State may
 never know how it could have done a better job in defending
 against the habeas petition . . . . It therefore could never
 show prejudice [and] even if the State could show prejudice,
 it is unlikely that this could serve as a ground for reversal
 of a grant of habeas.” 

.
      The district court rejected MFA’s challenge and sus-
 tained Alaska’s confidentiality and “Attorneys Eyes Only”
 designations. 2 The court found that the balance of harms
 weighs against disclosure to MFA’s in-house counsel of
 Alaska’s confidential business and technological infor-
 mation. The court explained that: “This is not a case where
 in-house counsel engages in only limited licensing activi-
 ties as in Live Eyewear, but rather, [MFA]’s entire business


 2  Modern Font Applications LLC v., Alaska Airlines, Inc.,
 Case No. 2:19-cv-00561-DBB-CMR, 

 (D.
 Utah Feb. 3, 2021); 

 (D. Utah Mar. 2,
 2021) (“Dist. Ct. Order.”).
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 8         MODERN FONT APPLICATIONS LLC     v. ALASKA AIRLINES



 model revolves around the licensing of patents through lit-
 igation with the assistance of its in-house counsel[.]” Dist.
 Ct. Order at *5.
     With respect to MFA’s access to Alaska’s source code,
 the district court observed that the source code “contains
 both sensitive and valuable information,” id. at *4, and
 held that MFA had not adequately explained why it needs
 Alaska’s source code. It is well-recognized that source code
 may be a company’s “crown jewels,” Unwired Planet LLC
 v. Apple, Inc., 

, at *5 (D. Nev. Apr. 11,
 2013), and “its secrecy is of enormous commercial value,”
 Viacom Int’l Inc. v. YouTube Inc., 

 (S.D.N.Y. 2008). In Deutsche Bank we stated:
      A determination of the risk of inadvertent disclo-
     sure or competitive use does not end the inquiry.
     Even if a district court is satisfied that such a risk
     exists, the district court must balance this risk
     against the potential harm to the opposing party
     from restrictions imposed on that party’s right to
     have the benefit of counsel of its choice. U.S.
     Steel, 

; Brown Bag Software v. Sy-
     mantec Corp., 

, 1470 (9th Cir. 1992).
     In balancing these conflicting interests the district
     court has broad discretion to decide what degree of
     protection is required. Seattle Times Co. v. Rhine-
     hart, 

 (1984); Brown Bag Soft-
     ware, 960 F.2d at 1470.
 

. These principles, as applied by the
 district court, are appropriate for our review.
      The panel majority states its concern that “[permitting]
 MFA’s interlocutory appeal here would encourage parties
 to ‘unduly delay the resolution of district court litigation
 and needlessly burden’ this court by seeking appellate re-
 view of any pretrial discovery dispute in any patent case.”
 Maj. Op. at 10 (quoting Mohawk Indus., Inc. v. Carpenter,
 

 (2009)). This policy concern is not a
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 MODERN FONT APPLICATIONS LLC    v. ALASKA AIRLINES          9



 criterion of appellate jurisdiction, but of appellate discre-
 tion as applied to an appeal of which we have subject mat-
 ter jurisdiction.
     The panel majority, while denying this court’s appel-
 late jurisdiction, discusses the merits of MFA’s argument
 but nonetheless declines to make a final decision, citing
 MFA’s ability to request “review[] after final judgment.”
 Maj. Op. at 7. In my view, the preferable path at this stage
 of this case is to exercise our discretion and finally resolve
 these confidentiality and protective order issues, for if
 MFA’s in-house counsel is indeed entitled to receive this
 information, the information should be available before,
 not after, trial.
     From the ruling that we do not have jurisdiction, I re-
 spectfully dissent.