2008-1159 Vas-Cath v. Curators Univ Missouri

Posted on | February 21, 2008 | No Comments

WD/MO 05-CV-0400

Case originates from BPAI Interference No. 103,988.  After receiving an adverse judgment from the BPAI, Vas-Cath sought review in the District Court’s under 35 U.S.C. § 146.  Vas-Cath subsequently amended and changed its relief to a declaratory judgment vis-à-vis the ‘988 interference and an injunction against defendants from interfering in Vas-Cath’s patent.  The case transferred to the WD/MO which dismissed based on Eleventh Amendment immunity, but the Federal Circuit reversed, 473 F.3d 1376 (2007).  On remand, the court took up the still pending motion to dismiss for failure to state a claim.  Judge Gary Fenner held that the declaratory and injunctive relief sought exceeded the jurisdiction under § 146 (essentially to review BPAI judgments) and dismissed.

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