NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition Is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

04-1128 BOARD OF EDUCATION OF THE STATE OF FLORIDA (for and on behalf of the B oard of Regents of Flori da State University), MDS RESEARCH FOUNDATION, I NC., and TAXOLOG, INC., Plaintiffs-Appellees,

v. AMERICAN BIOSCIENCE, INC. (formerly known as Vivorx Pharmaceuticals, Inc.), Defendant-Appellant, and CHUNLIN TAO, Defendant.

__________________ _________ DECIDED: February 22, 2005

__________________ _________ Before MICHEL, Chief Judge , * NEWMAN and RADER, Circuit Judges

. RADER, Circuit Judge

. Following entry of the mandate in The Bd. of Educ. v. Am. Bioscience, Inc. , 333 F.3d 1330 (Fed. Cir. 2003) ( ABI I ), American Bioscience, Inc. (ABI) filed a motion in the United States District Court for the Northern Dis trict of Florida (district court) seeking entry of an amended judgment to reflect better this court’s findings on inventorship, and

* Paul R. Michel assumed the positi on of Chief Judge on December 25, 2004.costs. The district court dism issed for lack of jurisdiction. Bd. of Ed uc. v. Am

. Biosciences, Inc. , Case No. 4:99cv/131/RV (N.D . Fla. Oct. 21, 2003) ( ABI II ). Because the district court has jurisdicti on t o award costs, this court reverses and remands for the district court to determine whet her any as sessm ent of fees is approp riate. This court affirms the district court’s dismissal for lac k of jurisdiction to amend its prior judgment after this court’s decision in ABI I

. BACKGROUND ABI initiated this case in a California di strict court in Oct ober 1998. ABI sought damages for the infringement of U.S. P a tent No. 5,780,653 (the ’653 patent), a declaratory judgment of invent orship and ownership with re spect to the ’653 patent, and an injunction restraining the Boar d of Educat i on of the State of Flor ida (for and on behalf of the Board of Regents of Florida State Univer sity), MDS Resear ch Foundat i on, Inc., and Taxolog, Inc. (FS U ) from using any co mpounds described in the ’653 patent. The California district court transferred the cas e to the Florida district court. FSU asserted seven counts against ABI. ABI voluntarily di smissed three causes of action. Before trial, FSU accepted ABI’s settlement offer of $300,000 resulting in a final judgment on counts I-VI. The bench trial on FSU’s remaining co unt for declaratory relief proceeded thereafter, resulting in the district court’s Nove mber 5, 2001 judgment. Bd. of Educ. v

. Am. Biosciences, Inc. , Case No. 4:99cv/131/RV (N.D . Fla. Nov. 5, 2001) ( Judgment ). On appeal, this court reversed in part, affirmed in part, and vacated in par t. ABI I

. Following entry of the mandate in ABI I , ABI filed a motion in the district court seeking entry of an amended judgment reflecting this c ourt’s findings on inventorship, and taxing

2costs in fa vor of ABI. The district court refused to entertain those motions on grounds that it was “without jurisdiction” to do so. ABI II . ABI contends that this was error and appeals the district court’s order . This court has jurisdiction under 28 U.S.C. § 1295(a). DISCUSSI ON With respect to the charge that the district court erred in denying ABI’s motion for an amended judgment and further e rred in denying ABI’s motion to tax costs, this court generally r e views suc h dec isions for an abuse of discretion. Fiskars, Inc. v. Hunt Mfg. , 279 F.3d 1378, 1381- 82 (Fed. Cir. 2002). “A dist rict court abuse s its discretion when it s decision is based on clearly erroneous fi ndings of fact, is based on erroneous interpretations of the law, or is c l early unreasonable, arbitrar y or fanciful.” Cybor Corp. v. FAS Techs., Inc. , 138 F.3d 1448, 1460 (Fed. Cir. 1998) ( en banc). To the extent that this court reviews the distri ct court’s interpretation of ABI I , however, the standard of review is de novo. Tronzo v. Biomet, Inc. , 236 F.3d 1342, 1346 (Fed. Cir. 2001). The district court correctly dismissed fo r la ck of jurisdiction to amend its prior judgment after ABI I . This court states: “Unless rem anded by this court, all issues within the scope of the appealed judgm ent are incorporated within the scope of the mandate and are thus precluded from further adjudic a tion.” Odetics, Inc. v. Storage T e ch. Corp. , 185 F.3d 1259, 1275 (quoting Engel Indus. Inc. v. Lockformer Co. , 166 F.3d 1379, 1383). Because ABI I remanded no iss ues to the distri ct court, the district court correctly ruled that it did not have jurisdicti on to proceed further. A B I has not cited any rules or precedents to the contrary. Howev e r, the district court retains jurisdictio n with resp ect to ABI’s motion to tax costs. In denying ABI’ s motion to tax costs, t he district court reasoned:

3I am likewise without jurisdiction to re-examine the Federal Circuit’s decision that each party bear its own costs because t he taxation of costs was within the scope of the judgment ABI appealed and any dispute over that issue appears to have been resolv ed by the Federal Circuit. Accordingly, ABI’s motions to am end the judgment and to tax costs are DENIE D

. ABI II at 2. While the issue of appellate co sts was within the scope of this court’s mandate in ABI I , th e issue of district court costs was not. Nothing in this court’s mandate in ABI I prec luded the district court from addr essing the issue of district court costs following ABI I . In the final sentence of ABI I , thi s court declared that “[e]ach party . . . [shall] bear its own costs[].” This dec lar a tion merely addressed appellate costs. ABI I at 1344. As a result, this court revers es the order of the district court in ABI II and remands to permit the district court to c onsider ABI’s motion to tax c o sts. Any assessment of fees will be within the discr etio n of the district court.

4