Court lacks jurisdiction over interference appeal
Human Genome Sciences, Inc. v. Amgen, Inc. et al., C.A. No. 07-780 SLR, May 9, 2008.
Robinson, J. Court grants defendants’ motion to dismiss for lack of subject matter jurisdiction under 35 U.S.C. § 146 where plaintiff seeks adverse judgment on appeal from concession on priority during interference process.
Plaintiff seeks review of a decision and final judgment by the Board of Patent Appeal and Interferences. During the interference process, plaintiff conceded priority based on the Board’s decision on preliminary motions. Defendants moved to dismiss the action. Defendants assert that the Court lacks subject matter jurisdiction over the present action because plaintiff, through its request for adverse judgment, has conceded priority, rendering the subject matter of this appeal moot. The Court concludes that a concession of priority before the Board does not, as a matter of law moot an appeal pursuant to §146. Because an interference is such a unique administrative proceeding and there is little guiding case law, the Court examines jurisdiction in light of the record. The purpose of an interference is to give the Board a full and fair opportunity to determine priority. The Court finds that plaintiff presented little more than conclusory arguments and failed to develop the record. Allowing an appeal on priority would constitute an effective usurpation of the Board’s original jurisdiction.
A full copy of the opinion is available here.
