
    CLASSEN IMMUNOTHERAPIES, INC., Plaintiff-Appellant, v. BIOGEN IDEC, Defendant-Appellee, and GlaxoSmithKline, Defendant-Appellee, and Merck & Co., Inc., Defendant-Appellee, and Kaiser Foundation Health Plan, Inc., Defendant-Appellee.
    No. 2006-1216.
    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

GlaxoSmithKline (GSK) moves to dismiss this appeal, from the United States District Court for the District of Maryland in 04-CV-02607, for lack of jurisdiction. GSK also moves for fees and costs. Clas-sen Immunotherapies, Inc. submits an opposition, out of time. GSK replies.

Classen sued the defendants for infringement. The district court granted motions to dismiss certain counts of Clas-sen’s complaint and granted Merck & Co., Inc.’s motion for summary judgment of noninfringement. However, Merck’s counterclaim for a declaratory judgment of invalidity remains pending and, indeed, a trial date has been set. 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 to dismiss is granted.

(2) The motion for fees is denied.

(3) Costs awarded to GSK.  