NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
AFFYMAX, INC.,
Plaintiff-Appellant,
V.
JOI'INSON & JOHNSON, ORTHO-MCNEIL
PI~IARMACEUTICAL, INC., ORTHO
PHARMACEUTICAL CORPORATI()N, R.W.
JOHNSON PHARMACEUTICAL RESAERCH
INSTITUTE, JOHNSON & JOHNSON
PHARMACEUTICAL RESEARCH AND
DEVELOPMENT, LLC, AND DOES 1-10,
Defen.dcmts-Appellees.
2011-1388
Appea1 from the United States District C0urt for the
N0rt]:1ern DiStrict of Il1in0iS in case n0. 04~CV-6216, Judge
Ma1;thew F. Kenne1ly.
ON MOTION
Bef0re SCHALL, Circuit Judge.
0 R D E R

AFFYMAX V. JOHNSON & JOHNSON 2
Johnson & Johnson, Ortho-McNeil Pharmaceutical,
Inc., Ortho Pharmaceutical Corporation, R.W. Johnson
Pharmaceutical Research lnstitute, Johnson & Johnson
Pharmaceutical Research and Development, LLC, and
Does 1-10 (J&J) move to dismiss the appeal for lack of
jurisdiction Affymax, Inc. opposes. J&J replies
Affymax filed a complaint asserting, inter alia, claims
for correction of inventorship under 35 U.S.C. § 256 as
well as state and contract law claims. J&J moved to
compel arbitration and the district court granted the
motion. An arbitration panel issued an award determin-
ing the parties' rights to the patents and patent applica-
tions. Affymax moved to vacate the award in part
pursuant to 9 U.S.C, § 10. The district court granted that
motion in part, confirming the award concerning United
States patents and applications and vacating the award
and remanding for further arbitration proceedings con-
cerning the inventorship of foreign patents.
Affymax appealed, seeking this court's review of the
portion of the district court's determination that con-
firmed the award concerning United States patents and
applications J&J appealed to the United States C0urt of
Appeals for the Seventh Circuit, seeking review of the
district court's vacatur of a portion of the arbitration
award. The Seventh Circuit expedited its proceedings
and determined that it had jurisdiction and that this
circuit would not have jurisdiction. The Seventh Circuit
held that the case involved "a dispute about patent own-
ership that does not depend on 28 U.S.C. § 1338" and that
the order was appealable pursuant to 9 U.S.C. §
16(a)(1)(E). The SeVenth Circuit also held that the order
was not appealable as being equivalent to an order involv-
ing an injunction, apparently in response to our holdings
in Micr0chip Tech. Inc. v. U.S. Philips Corp., 367 F.3d
1350, 1354-55 (Fed. Cir. 2004) (order compelling arbitra-

