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Federal Circuit Refuses to Hear D. Del. Appeal

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In a tersely worded order, the Federal Circuit has declined to entertain an interlocutory appeal from a decision of then-Delaware district judge Kent A. Jordan.

The case began when pharmaceutical giant Amgen Inc. filed suit against Ariad Pharmaceuticals Inc., seeking a declaratory judgment of noninfringement and invalidity. Faced with a motion to dismiss for lack of subject matter jurisdiction, the district court denied the motion, but certified the case for appeal.

Notwithstanding the district court’s certification, the Federal Circuit summarily denied the application for permission to appeal. Although styled “nonprecedential,” the appellate court’s order raises the question whether it is willing to resolve apprehension-of-suit issues when a district court has, by denying a 12(b)(1) motion, retained control over the case.

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