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Judge Burke recommends dismissal due to lack of subject matter jurisdiction

In ABT Holding Company, et al. v. Garnet Biotherapeutics, Inc., C.A. No. 14-1512-LPS-CJB (D. Del. Mar. 23, 2016), Magistrate Judge Christopher J. Burke recommended that Defendant’s motion to dismiss for lack of subject matter jurisdiction be granted. The motion was based on the recent Federal Circuit case, Biogen MA, Inc. v Japanese Foundation for Cancer Research, 785 F.3d 648 (Fed. Cir. 2015), in which that court held that the America Invents Act eliminated district courts’ subject matter jurisdiction over review of decisions in patent interference proceedings. Id. at 1. Now that the U.S. Supreme Court has denied Biogen’s petition for writ of certiorari in that case and the holding is thus “undisturbed,” the Court concluded that it lacked subject matter jurisdiction over the case. Id. at 2.

Rather than dismiss the action, the Court recommended that it be transferred to the Federal Circuit, where Plaintiffs could have originally brought the action.  Id.

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