The Eleventh Circuit held, as a matter of first impression in that court, that it has jurisdiction to hear an appeal of a breach of contract claim that was based upon a claim of patent infringement. MDS (Canada) Inc. v. Rad Source Technologies, Inc.,No. 11-15145 (11th Cir. July 1, 2013). In MDS, the parties entered into a licensing agreement in which plaintiff was granted the right to market defendant’s existing patented product, and which prohibited defendant from developing any new technology that embodies the relevant patents. Defendant later designed and began selling a new product, which it touted as an upgrade to the product it had licensed to plaintiff. Plaintiff sued, alleging that defendant breached their licensing agreement because defendant’s new product embodied technology covered by the patents on the licensed product. The district court found in favor of defendant. On appeal, defendant argued that the Federal Circuit had exclusive jurisdiction to review the case because the claims required the court to answer a question of patent infringement. The Eleventh Circuit disagreed, holding it had jurisdiction to hear the appeal. The court acknowledged that in order to succeed on its breach of contract claim, plaintiff must prove that defendant infringed the licensed patents. But, the court concluded, the patent questions were “not substantial” because the infringement issues were heavily fact-bound and unlikely to control any future cases or impact future construction of claims. The court further reasoned that the government interest in having any single case of patent infringement heard in the Federal Circuit was limited, and a holding that all questions of patent infringement are substantial questions for purposes of federal patent jurisdiction would sweep a number of state-law claims into federal court and upend the “federal-state division of labor.”