Amgen, Inc. v. Ariad Pharmaceuticals, Inc. ( 2006 )

SCHALL, Circuit Judge.

ORDER

Ariad Pharmaceuticals, Inc. petitions for permission to appeal the order certified by the United States District Court for the District of Delaware in Amgen, Inc. v. Ariad Pharmaceuticals, Inc., No. 06-CV-259, as one involving a controlling question of law as to which there is substantial ground for difference of opinion and for which an immediate appeal may materially advance the ultimate termination of the litigation. 28 U.S.C. §§ 1292(b) and (c). Amgen, Inc. et al. (Amgen) oppose. Ariad moves for leave to reply, with reply attached. Amgen opposes.

Amgen filed an action seeking a declaratory judgment of invalidity and noninfringement of Ariad’s patent. Ariad moved to dismiss the action, arguing that Amgen lacked a reasonable apprehension that it would be subject to suit in federal court and thus the district court lacked jurisdiction. The district court denied the motion, and Ariad seeks permission to appeal.

The decision whether to grant a petition for permission to appeal is within this court’s discretion. See In re Convertible Rowing Exerciser Patent Litigation, 903 F.2d 822 (Fed.Cir.1990). In this case, we conclude that interlocutory appeal is not warranted.

Accordingly,

IT IS ORDERED THAT:

(1) The petition for permission to appeal is denied.

(2) Ariad’s motion for leave to file a reply is granted.