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Xitronix Corp. v. KLA-Tencor Corp.

Walker Process Appeal With No Substantive Patent Law Issue Directed to Regional Circuit Court

Xitronix Corp. v. KLA-Tencor Corp., 2018 WL 798662 (Fed. Cir. Feb. 9, 2018) (MOORE, Mayer, Hughes) (W.D. Tex.: Sparks) (3 of 5 stars)

Fed Cir transfers appeal to Fifth Circuit. Xitronix’s claim alleged Walker Process monopolization based on fraudulent prosecution of a patent. As in Gunn, 568 U.S. 251 (2013), Xitronix’s claim (which alleged false statements before the PTO) did not depend on the resolution of any substantial question of federal patent law. While it might be necessary, in resolving the claim, to evaluate the claims and specifications of multiple patents, “the federal question jurisdiction statute requires more than mere resolution of a patent issue in a ‘case within a case.’” Op. at 6. Nobelpharma, 141 F.3d 1059 (Fed. Cir. 1998), and Ciprofloxacin Litigation, 544 F.3d 1323 (Fed. Cir. 2008), are not contrary. While Nobelpharma recognized that most Walker Process claims will be appealed to the Federal Circuit, it did not hold that all such claims must be so appealed. And Cipro’s allusion to exclusive Federal Circuit jurisdiction in such cases was dicta. Both cases were pre-Gunn. The opinion also recites decisions from the regional appellate courts that are supportive.

KEYWORDS: APPELLATE JURISDICTION; WALKER PROCESS