Idenix Pharmaceuticals LLC et al v. Gilead Pharmasset LLC

Filing 26

MEMORANDUM ORDER re 23 REPORT AND RECOMMENDATION is ADOPTED in full. 9 MOTION to Dismiss filed by Gilead Pharmasset LLC is GRANTED and the case is DISMISSED. ***Civil Case Terminated. Signed by Judge Leonard P. Stark on 11/16/16. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

IDENIX PHARMACEUTICALS LLC,
UNIVERSITA DEGLI STUDI di CAGLIARI,
CENTRE NATIONAL de la RECHERCHE
SCIENTIFIQUE,
and UNIVERSITE de MONTPELLIER,
Plaintiffs,

v.

C.A. No. 15-416-LPS-CJB

GILEAD PHARMASSET LLC,
Defendant.

MEMORANDUM ORDER
WHEREAS, United States Magistrate Judge Christopher J. Burke issued a six-page
Report and Recommendation ("R&R") (D.I. 23), dated July 5, 2016, recommending that
Defendant's motion to dismiss for lack of subject matter jurisdiction, pursuant to Federal Rule of
Civil Procedure 12(b)(1) (D.I. 9) be granted;
WHEREAS, on July 22, 2016, Plaintiffs filed their objections to the R&R (D.I. 24);
WHEREAS, on August 8, 2016, Defendant responded to Plaintiffs' objections (D.I. 25);
WHEREAS, the Court has considered the motion de novo, see Masimo Corp. v. Philips

Elec. N Am. Corp., 62 F. Supp. 3d 368, 379 (D. Del. 2014); 28 U.S.C. § 636(b)(l); Fed. R. Civ.
P. ("Rule(s)") 72(b)(3 ), and has furt;her reviewed all of the pertinent filings;
NOW THEREFORE, IT IS HEREBY ORDERED that:
1.

Plaintiffs' objections (D.I. 24) are OVERRULED. Judge Burke's R&R (D.I. 23)

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is ADOPTED in full. Defendant's motion (D.I. 9) is GRANTED and the case is DISMISSED.
2.

The Court is bound by the Federal Circuit's precedential opinion in Biogen MA,

Inc. v. Japanese Foundation for Cancer Research, 785 F.3d 648 (Fed. Cir. 2015), which held
that district courts lack subject matter jurisdiction, pursuant to 35 U.S.C. § 146, over challenges
to the result of a PTO interference that was declared after September 15, 2012. The Federal
Circuit denied en bane review of its decision in Biogen and the Supreme Court denied a petition
for a writ of certiorari. See 136 S. Ct. 1450 (2016). As this case involves a challenge to the
result of a PTO interference that was declared after September 15, 2012, the Court lacks
jurisdiction to resolve the parties' dispute
3.

The Court is not persuaded that it should exercise its discretion to stay this action,

hold the motion to dismiss in abeyance, or - instead of dismissing the action - transfer this case
to the Federal Circuit, which does have jurisdiction to hear challenges to the result of an
interference. See 35 U.S.C. § 141. Plaintiff has pending an appeal in the Federal Circuit from
the same interference to which the instant action is directed. See Storer v. Clark, 15-1802 (Fed.
Cir.). Plaintiff may, of course, if it wishes now appeal this Court's dismissal of this action.
4.

Given the reasoning provided in the R&R, and given that both parties' arguments

are fully addressed by the R&R to the extent not addressed here, the Court finds it unnecessary to
address Plaintiffs' Objections any further.

November 16, 2016
Wilmington, Delaware

H
ONARD P. STA
UNITED STATES DISTRICT JUDGE

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