#### AMPERION, INC., Plaintiff-Appellant, v. CURRENT GROUP, LLC, Current Communications Services LLC, Current Technologies, LLC, Oncor Electric Delivery Company LLC, Defendants-Appellees.

No. 10-3715-cv.

United States Court of Appeals, Second Circuit.

Oct. 31, 2011.

*478Blair C. Fensterstock, Fensterstock & Partners LLP, New York, NY, for Plaintiff-Appellant.

Lori R. Mason (Jonathan Bach, Christopher Campbell, Phillip Morton, on the brief), Cooley LLP, Palo Alto, CA, for Defendants-Appellees.

PRESENT: AMALYA L. KEARSE, PIERRE N. LEVAL, DENNY CHIN, Circuit Judges.

*SUMMARY ORDER*

We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

This Court may transfer an appeal for lack of jurisdiction to any other court in which the appeal “could have been brought at the time it was filed or noticed.” 28 U.S.C. § 1631. Under the version of § 1295(a)(1) applicable to this case, the Federal Circuit has “exclusive jurisdiction of an appeal from a final decision of a district court of the United States ... if the jurisdiction of that court was based, in whole or in part, on section 1338 of this title.” 28 U.S.C. § 1295(a)(1) (2006).

Section 1338 provides that a district court has “original jurisdiction of any civil action arising under any Act of Congress relating to patents” or “any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the ... patent ... laws.” 28 U.S.C. § 1338(a)-(b). An action “ ‘arises under’ ” patent law if (1) “ ‘federal patent law creates the cause of action’” or (2) “ ‘the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal patent law, in that pat*479ent law is a necessary element of one of the well-pleaded claims.’ ” *In re DDAVP Direct Purchaser Antitrust Litig.,*585 F.3d 677, 684-85 (2d Cir.2009) (quoting Christianson v. *Colt Indus. Operating Corp.,*486 U.S. 800, 808-09, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988)).

Here, the jurisdiction of the district court was based at least in part on § 1338. Amperion’s complaint asserted two counts against Current and Oncor: Count One alleged patent infringement, and Count Two alleged unfair competition and conspiracy. The complaint alleged that “[t]his case arises out of [Current and Oncor’s] wilfull [sic] infringement of Am-perion’s patents ... in violation of federal patent law and the laws of unfair competition.” (Comply 1). Amperion argues that because it alleged tortious interference, anticompetitive action, and unlawful monopolization in Count Two, it had pled alternative theories of relief that did not “‘necessarily [depend] on resolution of a substantial question of federal patent law.’ ” Appellant Br. In Opp’n to Mot. to Dismiss or Transfer 2 (quoting *Christian-son,*486 U.S. at 809,108 S.Ct. 2166). Am-perion’s argument is doubly flawed.

First, since § 1338 provides two bases for federal jurisdiction over Amperion’s action — i.e., for claims arising under a federal patent law, and for claims joined with a substantial and related patent law claim— Amperion must show that neither basis is implicated here. Its complaint asserted both types of claims, and Amperion’s contention that Count Two does not necessarily depend on federal patent law does not negate the fact that the district court had jurisdiction of Count One, alleging patent infringement, as a claim clearly arising under federal patent law. As pointed out above, the Federal Circuit has exclusive appellate jurisdiction if the jurisdiction of the district court was based on § 1338 “in whole or in part.” 28 U.S.C. § 1295(a)(1) (2006). Second, Amperion’s allegations under Count Two stemmed solely from Current and Oncor’s alleged infringement of Amperion’s patents. (CompLIHI 38-46). Defendants’ liability on that count will necessarily turn on whether they infringed Amperion’s patents.

Amperion’s argument that the issue on appeal is procedural and not substantive, therefore warranting review by this Court, is also unavailing. The Federal Circuit’s jurisdiction “depends upon the nature of the case in the district court and not upon the issues presented [on appeal] for review.” *U.S. Philips Corp. v. Windmere Corp.,*861 F.2d 695, 701-02 (Fed.Cir.1988) (internal citation omitted). Further, the Federal Circuit has held that “whether a properly brought declaratory action to determine patent rights should yield to a later-filed suit for patent infringement raises the issue of national uniformity in patent cases, and invokes the special obligation of the Federal Circuit to avoid creating opportunities for dispositive differences among the regional circuits.” *Genentech, Inc. v. Eli Lilly and Co.,*998 F.2d 931, 937 (Fed.Cir.1993), *abrogated in part, on other grounds, by Wilton v. Seven Falls Co.,*515 U.S. 277, 289, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995).

We have considered appellant’s other arguments in support of jurisdiction in this Court and have found them to be without merit. Accordingly, appellee’s motion to transfer the appeal to the Federal Circuit is GRANTED.