Classen Immunotherapies, Inc. v. Biogen Idec , 178 F. App'x 14 ( 2006 )

ON MOTION

MICHEL, Chief Judge.

ORDER

GlaxoSmithKline (GSK) moves to dismiss this appeal, from the United States District Court for the District of Maryland in 04-CV-02607, for lack of jurisdiction. GSK also moves for fees and costs. Clas-sen Immunotherapies, Inc. submits an opposition, out of time. GSK replies.

Classen sued the defendants for infringement. The district court granted motions to dismiss certain counts of Clas-sen’s complaint and granted Merck & Co., Inc.’s motion for summary judgment of noninfringement. However, Merck’s counterclaim for a declaratory judgment of invalidity remains pending and, indeed, a trial date has been set. Thus, there is no final judgment and any appeal is premature. Nystrom v. TREX Co., Inc., 339 F.3d 1347 (Fed.Cir.2003).

Accordingly,

IT IS ORDERED THAT:

(1) The motion to dismiss is granted.

(2) The motion for fees is denied.

(3) Costs awarded to GSK.