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Amity Rubberized Pen Co. v. Mkt. Quest Group, Inc.

United States Court of Appeals, Ninth Circuit

July 13, 2015

AMITY RUBBERIZED PEN COMPANY, a California corporation, Plaintiff-Appellant,
v.
MARKET QUEST GROUP INCORPORATED, a California Corporation, DBA All in One Manufacturing; ALLINONELINE.COM, an entity of unknown status; HARRIS COHEN, an individual; KAREN COHEN, an individual, Defendants-Appellees

Submitted May 6, 2015 [*], Pasadena, California

Appeal from the United States District Court for the Central District of California. DC No. 2:13 CV 00069-GW-CW. George H. Wu, District Judge, Presiding.

SUMMARY[*]

Patent Law

The panel transferred a patent case to the Court of Appeals for the Federal Circuit.

The panel concluded that the case unmistakably arose under the patent laws where the plaintiff's first two claims asserted patent infringement and inducement of patent infringement. Accordingly, they fell within the exclusive appellate jurisdiction of the Federal Circuit, and the panel lacked jurisdiction to resolve the merits of the appeal. Rather than dismissing the appeal, the panel held that because the appeal was neither frivolous nor filed in bad faith, the interest of justice would be served by allowing the appeal to be heard by the Federal Circuit, which would have had jurisdiction at the time the notice of appeal was filed. The panel therefore transferred the misfiled appeal to the Federal Circuit pursuant to 28 U.S.C. § 1631.

Sarah R. Wolk and Zachary Levine, Wolk & Levine LLP, Glendale, California, for Plaintiff-Appellant.

Julie S. Turner, Turner Boyd LLP, Redwood City, California, for Defendants-Appellees.

Before: A. Wallace Tashima, Richard C. Tallman, and Jacqueline H. Nguyen, Circuit Judges.

OPINION

A. Wallace Tashima, Circuit Judge:

This is a patent case. Congress has directed that appeals of patent cases shall be heard by the Court of Appeals for the Federal Circuit, and that other circuit courts, including this court, do not have jurisdiction to decide such cases. See 28 U.S.C. § 1295(a)(1). Thus, this appeal should have been filed with the Federal Circuit. Because, however, it was filed with us, we must decide what to do with it. We hold that the interest of justice would be served by allowing this case to be heard by the Federal Circuit, and so order that it be transferred to that court.

I.

This appeal is the latest chapter in an ongoing patent dispute. For our purposes, the relevant facts are brief. Plaintiff Amity Rubberized Pen Company (" Amity" ) holds U.S. Patent No. 7,004,350 (the " '350 Patent" ) for a device that dispenses both toothpicks and tablets, such as mints. On September 26, 2006, Amity sued Defendant Market Quest Group, Inc., (" Market Quest" ) alleging infringement of the '350 Patent, inducement of patent infringement, and various related federal and state law claims. Amity's counsel withdrew during the trial, and the district court declared a mistrial. The district court instructed Amity to retain new counsel and to pay Market Quest's costs and fees incurred in connection with the aborted trial, and warned Amity that failure to comply would result in dismissal. Amity refused to pay Market Quest's fees, and on July 12, 2010, the district court dismissed the case with prejudice.

On January 4, 2013, Amity filed the present action, alleging similar claims as in its previous action, including patent infringement, induced infringement, false advertising under the Lanham Act, intentional tortious interference, and unfair competition. The patent claims were based on the '350 Patent, just as the claims in the prior 2006 action had been. Market Quest moved to dismiss Amity's later action, arguing that the entire case was precluded by the 2010 dismissal of the prior action under the doctrine of res judicata. The district court agreed, concluding that Amity's claims were identical to those in its earlier complaint, except that they concerned a different time frame, and dismissed ...


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