
    CLASSEN IMMUNOTHERAPIES, INC., Plaintiff/Counterclaim Defendant-Appellant, and Dr. John Barthelow Classen, Counterclaim Defendant, v. KING PHARMACEUTICALS, INC., Defendant-Appellee, and Elan Pharmaceuticals, Inc., Defendant/Counterclaimant-Appellee.
    No. 2006-1219.
    United States Court of Appeals, Federal Circuit.
    April 10, 2006.
    Before MICHEL, Chief Judge, GAJARSA and PROST, Circuit Judges.
   ON MOTION

MICHEL, Chief Judge.

ORDER

Elan Pharmaceuticals, Inc. moves to dismiss this appeal, from the United States District Court for the District of Maryland in 04-CV-03521, for lack of jurisdiction. King Pharmaceuticals, Inc. and Classen oppose. Elan replies.

Classen sued Elan and King for infringement. The district court granted summary judgment that King did not infringe. Although Classen requested entry of a Fed.R.Civ.P. 54(b) judgment, the district court did not grant that motion but instead entered judgment in favor of King on the infringement claim. Classen’s claim against Elan and various counterclaims remain pending. Thus, there is no final judgment and any appeal is premature. Nystrom v. TREX Co., Inc., 339 F.3d 1347 (Fed.Cir.2003).

Accordingly,

IT IS ORDERED THAT:

(1) The motion is granted.

(2) All sides shall bear their own costs.  