David Halpern v. Peritec Biosciences, Ltd.; Peritec Biosciences; Rajesh K. Khosla; Timur Sarac

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0673n.06
No. 08-4278
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DAVID HALPERN,
Plaintiff-Appellant,
v.
PERITEC BIOSCIENCES, LTD.; PERITEC
BIOSCIENCES; RAJESH K. KHOSLA;
TIMUR SARAC,
Defendants-Appellees.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO
Before: MARTIN, ROGERS, and COOK, Circuit Judges.
PER CURIAM. Plaintiff Halpern appeals from the district court’s Rule 12(b)(6) dismissal
of his suit to enjoin patent-pending rights, testing, and marketing of a device he claims to have
invented. Because Halpern’s complaint seeks relief under the patent law, appellate jurisdiction lies
exclusively in the Federal Circuit. 28 U.S.C.§ 1295(a); 28 U.S.C.§ 1338(a). Neither party’s brief
questions this Court’s appellate subject matter jurisdiction; thus, we raise it sua sponte. See
Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 459, 465 (6th Cir. 2009)
(“federal courts have a duty to consider their subject matter jurisdiction in regard to every case and
may raise the issue sua sponte”).

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No. 08-4278
Halpern v. Peritec Biosciences, LTD., et al.
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Jurisdiction lies in the Federal Circuit because Halpern’s “patent rights” claim seeks to enjoin
the exercise of provisional patent rights conferred by 35 U.S.C. § 154(d) and asks the district court
to determine under the patent law his right to enjoin the exercise of provisional patent rights, patent-
pending marketing, and patent-pending testing. Consequently, the Federal Circuit has exclusive
jurisdiction over this appeal. This Court may, in the interests of justice, transfer the appeal for want
of jurisdiction to a court where the appeal could have been brought if it were timely filed. 28 U.S.C.
§ 1631. The interests of justice favor transferring Halpern’s appeal because it was not brought in
bad faith and would also be time-barred if dismissed.
Accordingly, the appeal is transferred to the United States Court of Appeals for the Federal
Circuit under 28 U.S.C. § 1631. The clerk of this court is directed to transmit the record and briefs
to the clerk of that court.

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