Friday, December 19, 2008

Short-circuiting interference proceeding deprives a district court of jurisdiction to review BPAI decision

Where plaintiff voluntarily terminated an interference proceeding after a decision on preliminary motions, and before the priority phase, it failed to exhaust administrative remedies and therefore deprived the district court of subject matter jurisdiction to review of the Board of Patent Appeals and Interferences' decision pursuant to 35 USC § 146. "[I]n view of the lack of Federal Circuit precedent mandating otherwise, the court declines to review the underdeveloped and incomplete record below as a matter of judicial economy, and declines to adopt a position that would freely allow litigants to circumvent Board decisions on priority."

Human Genome Sciences Inc. v. Genentech Inc., 1-08-cv-00166 (DED December 17, 2008, Memorandum Opinion)

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