10-3715-cv
Amperion v. Current Group

                  UNITED STATES COURT OF APPEALS
                      FOR THE SECOND CIRCUIT

                              SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE
32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A
PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

          At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 31st day of October, two thousand eleven.
PRESENT:
            AMALYA L. KEARSE,
            PIERRE N. LEVAL,
            DENNY CHIN,
                      Circuit Judges.

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AMPERION, INC.,
          Plaintiff-Appellant,

                  -v.-                                10-3715-cv

CURRENT GROUP, LLC, CURRENT COMMUNICATIONS
SERVICES LLC, CURRENT TECHNOLOGIES, LLC,
ONCOR ELECTRIC DELIVERY COMPANY LLC,
          Defendants-Appellees.

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FOR PLAINTIFF-APPELLANT:      BLAIR C. FENSTERSTOCK, Fensterstock
                              & Partners LLP, New York, New York.

FOR DEFENDANTS-APPELLEES:     LORI R. MASON (Jonathan Bach,
                              Christopher Campbell, Phillip
                              Morton, on the brief), Cooley LLP,
                              Palo Alto, California.

          Plaintiff-appellant Amperion, Inc. ("Amperion") appeals

from an order entered August 23, 2010 in the United States

District Court for the Southern District of New York (Buchwald,

J.), dismissing its complaint as duplicative of and filed

subsequent to an action pending in the United States District

Court for the District of Massachusetts.   Defendants-appellees

Current Group, LLC, Current Communications Services, LLC, Current

Technologies, LLC (collectively, "Current"), and Oncor Electric

Delivery Company LLC ("Oncor") move pursuant to 28 U.S.C. § 1631

to dismiss the appeal for lack of jurisdiction or, alternatively,

to transfer it to the United States Court of Appeals for the

Federal Circuit.   UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the motion to transfer is GRANTED.

           We assume the parties' familiarity with the underlying

facts, the procedural history of the case, and the issues on

appeal.

           This Court may transfer an appeal for lack of

jurisdiction to any other court in which the appeal "could have

been brought at the time it was filed or noticed."   28 U.S.C.

§ 1631.   Under the version of § 1295(a)(1) applicable to this

case, the Federal Circuit has "exclusive jurisdiction of an

appeal from a final decision of a district court of the United


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States . . . if the jurisdiction of that court was based, in

whole or in part, on section 1338 of this title."   28 U.S.C.

§ 1295(a)(1) (2006).

          Section 1338 provides that a district court has

"original jurisdiction of any civil action arising under any Act

of Congress relating to patents" or "any civil action asserting a

claim of unfair competition when joined with a substantial and

related claim under the . . . patent . . . laws."   28 U.S.C.

§ 1338(a)-(b).   An action "'arises under'" patent law if (1)

"'federal patent law creates the cause of action'" or (2) "'the

plaintiff's right to relief necessarily depends on resolution of

a substantial question of federal patent law, in that patent law

is a necessary element of one of the well-pleaded claims.'"     In
re DDAVP Direct Purchaser Antitrust Litig., 585 F.3d 677, 684-85

(2d Cir. 2009) (quoting Christianson v. Colt Indus. Operating

Corp., 486 U.S. 800, 808-09 (1988)).

          Here, the jurisdiction of the district court was based

at least in part on § 1338.   Amperion's complaint asserted two

counts against Current and Oncor: Count One alleged patent

infringement, and Count Two alleged unfair competition and

conspiracy.   The complaint alleged that "[t]his case arises out

of [Current and Oncor's] wilfull [sic] infringement of Amperion's

patents . . . in violation of federal patent law and the laws of

unfair competition."   (Compl. ¶ 1).   Amperion argues that because

it alleged tortious interference, anticompetitive action, and

unlawful monopolization in Count Two, it had pled alternative


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theories of relief that did not "'necessarily [depend] on

resolution of a substantial question of federal patent law.'"

(Appellant Br. In Opp'n to Mot. to Dismiss or Transfer 2 (quoting

Christianson, 486 U.S. at 809)).    Amperion's argument is doubly

flawed.

          First, since § 1338 provides two bases for federal

jurisdiction over Amperion's action -- i.e., for claims arising

under a federal patent law, and for claims joined with a

substantial and related patent law claim -- Amperion must show

that neither basis is implicated here.    Its complaint asserted

both types of claims, and Amperion's contention that Count Two

does not necessarily depend on federal patent law does not negate

the fact that the district court had jurisdiction of Count One,

alleging patent infringement, as a claim clearly arising under

federal patent law.   As pointed out above, the Federal Circuit

has exclusive appellate jurisdiction if the jurisdiction of the

district court was based on § 1338 "in whole or in part."    28

U.S.C. § 1295(a)(1) (2006).   Second, Amperion's allegations under

Count Two stemmed solely from Current and Oncor's alleged

infringement of Amperion's patents.     (Compl. ¶¶ 38-46).

Defendants' liability on that count will necessarily turn on

whether they infringed Amperion's patents.

          Amperion's argument that the issue on appeal is

procedural and not substantive, therefore warranting review by

this Court, is also unavailing.    The Federal Circuit's

jurisdiction "depends upon the nature of the case in the district


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court and not upon the issues presented [on appeal] for review."

U.S. Philips Corp. v. Windmere Corp., 861 F.2d 695, 701-02 (Fed.

Cir. 1988) (internal citation omitted).   Further, the Federal

Circuit has held that "whether a properly brought declaratory

action to determine patent rights should yield to a later-filed

suit for patent infringement raises the issue of national

uniformity in patent cases, and invokes the special obligation of

the Federal Circuit to avoid creating opportunities for

dispositive differences among the regional circuits."   Genentech,
Inc. v. Eli Lilly and Co., 998 F.2d 931, 937 (Fed. Cir. 1993),

abrogated in part, on other grounds, by Wilton v. Seven Falls

Co., 515 U.S. 277, 289 (1995).

          We have considered appellant's other arguments in

support of jurisdiction in this Court and have found them to be

without merit.   Accordingly, appellee's motion to transfer the

appeal to the Federal Circuit is GRANTED.



                          FOR THE COURT:
                          CATHERINE O'HAGAN WOLFE, CLERK




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