Exela Pharma Sciences, LLC et al v. Kappos et al, No. 1:2012cv00469 - Document 14 (E.D. Va. 2012)

Court Description: MEMORANDUM OPINION re: defendants' 7 Motion to Dismiss. Signed by District Judge Liam O'Grady on 8/22/12. (dper)

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F'LED AUG 2 2 2012 IN THE UNITED STATES DISTRICT COURT Cl^RK. U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA fli cVAKDRIA. VIRGINIA Alexandria Division EXELA PI1ARMA SCIENCES, LLC, et al.,) ) ) Plaintiffs, ) ) ) ) v. DAVIDJ.KAPPOS,etal., Civil Action No.: l:12-cv-469 ) Defendants. ) MEMORANDUM OPINION Before the Court is Defendants' Motion to Dismiss under 12(b)(1) and (6). Defendants argue that Plaintiffs lack standing, that Plaintiffs' Complaint is untimely, and that the violation alleged in the Complaint is not subject to review under the Administrative Procedure Act ("APA"). Upon consideration of the parties' pleadings, in conjunction with the arguments made in open Court, it is hereby ORDERED that Defendants' Motion is DENIED. I. Background In 2003, United States Patent and Trademark Office ("PTO") revived an abandoned international patent application that eventually issued as U.S. Patent No. 6,992,218 ("the '218 patent"). Plaintiff challenges the PTO's revival decision under 35 U.S.C. ยง 371(d), alleging that the PTO improperly used an "unintentional" rather than an "unavoidable" standard, and that as a result, the PTO erroneously allowed the improperly revived patent to claim priority. Plaintiffs allege they were harmed by this error when the licensee of the "218 patent filed an infringement claim against Plaintiffs in Delaware in 2011.

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