Failure to seek rehearing by the Board of Patent Appeals results in dismissal
Human Genome Sciences, Inc. v. Genentech, Inc., Civ. No. 08-166-SLR, December 16, 2008.
Robinson, J. Defendant’s motion to dismiss review of decisions by the Board of Patent Appeals and Interferences is granted.
Plaintiff seeks review in the District Court of adverse decisions issued by the Board of Patent Appeals and Interferences having failed to seek a rehearing by the Board of its adverse rulings. Defendant moves to dismiss the action for lack of subject matter jurisdiction and for failure to state a claim. The District Court may only review a final judgment by the Board, disposing of all issues that were, or by motion could have properly been raised and decided. The likelihood that the Board would have issued an adverse decision does not relieve plaintiff from a statutory or regulatory requirement that it exhaust administrative remedies before filing for relief. Having failed to seek reconsideration by the Board prior to filing this action, the Court declines to review the decisions as a matter of judicial economy since doing so would allow the litigants to circumvent the Board’s prior rulings without first going through the appropriate administrative channels.
