David Halpern v. Peritec Biosciences, Ltd. , 333 F. App'x 86 ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0673n.06
No. 08-4278
FILED
Oct 06, 2009
LEONARD GREEN, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DAVID HALPERN, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) NORTHERN DISTRICT OF OHIO
PERITEC BIOSCIENCES, LTD.; PERITEC )
BIOSCIENCES; RAJESH K. KHOSLA; )
TIMUR SARAC, )
)
Defendants-Appellees. )
Before: MARTIN, ROGERS, and COOK, Circuit Judges.
PER CURIAM. Plaintiff Halpern appeals from the district court’s Rule 12(b)(6) dismissal
of his suit to enjoin patent-pending rights, testing, and marketing of a device he claims to have
invented. Because Halpern’s complaint seeks relief under the patent law, appellate jurisdiction lies
exclusively in the Federal Circuit. 28 U.S.C.§ 1295(a); 28 U.S.C.§ 1338(a). Neither party’s brief
questions this Court’s appellate subject matter jurisdiction; thus, we raise it sua sponte. See
Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 459, 465 (6th Cir. 2009)
(“federal courts have a duty to consider their subject matter jurisdiction in regard to every case and
may raise the issue sua sponte”).
No. 08-4278
Halpern v. Peritec Biosciences, LTD., et al.
Jurisdiction lies in the Federal Circuit because Halpern’s “patent rights” claim seeks to enjoin
the exercise of provisional patent rights conferred by 35 U.S.C. § 154(d) and asks the district court
to determine under the patent law his right to enjoin the exercise of provisional patent rights, patent-
pending marketing, and patent-pending testing. Consequently, the Federal Circuit has exclusive
jurisdiction over this appeal. This Court may, in the interests of justice, transfer the appeal for want
of jurisdiction to a court where the appeal could have been brought if it were timely filed. 28 U.S.C.
§ 1631. The interests of justice favor transferring Halpern’s appeal because it was not brought in
bad faith and would also be time-barred if dismissed.
Accordingly, the appeal is transferred to the United States Court of Appeals for the Federal
Circuit under 28 U.S.C. § 1631. The clerk of this court is directed to transmit the record and briefs
to the clerk of that court.
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