Idenix Pharmaceuticals LLC, et al. v. Gilead Pharmasset LLC, C.A. No. 15-416-LPS-CJB, July 5, 2016.

Burke, M. J. Report and Recommendation recommending that defendant’s motion to dismiss for lack of subject matter jurisdiction be granted.

Defendant’s motion relies on Biogen, a Federal Circuit case, for the proposition that an appeal of a decision in an interference proceeding after September 15, 2012, must go to the Federal Circuit rather than a district court. Plaintiffs acknowledge the holding of Biogen but note that the appellate course of Biogen had not yet run and they were therefore preserving their right to pursue a section 146 action in the district court. Subsequently the appeal ran its course with the Federal Circuit opinion intact. Plaintiffs had argued that if the Biogen decision was upheld on appeal, then this court should transfer this case along with a related action when it has concluded. The court declines to stay this action and recommends that defendant’s motion be granted.