Toxgon Corp. v. BNFL, Inc.

ORDER ***

Appellant Toxgon Corp. has filed a motion to transfer this appeal from the dismissal of its patent infringement claims to the United States Court of Appeals for the Federal Circuit pursuant to 28 U.S.C. § 1631 . Appellant correctly concedes that the Federal Circuit has exclusive jurisdiction of an appeal from a district court’s disposition of an action for patent infringement.

Appellees BNFL, Inc., et al., have failed to demonstrate that it would be contrary to the interest of justice to transfer this appeal to the Federal Circuit. See 28 U.S.C. § 1681 (providing that where there is a want of jurisdiction, a federal court shall transfer the matter if it is in the interest of justice to do so). Dismissal of this matter would be contrary to the interest of justice because a new appeal to the Federal Circuit would be time barred. See Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir.1990) (holding that dismissal of an action that could be brought elsewhere is “time-consuming and justice-defeating”). We decline Appellees’ invitation to “peek” at the merits of this appeal in view of the fact that Congress has provided that the Federal Circuit has exclusive jurisdiction over…