FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMITY RUBBERIZED PEN COMPANY,

a California corporation,

Plaintiff-Appellant,

v.

MARKET QUEST GROUP

INCORPORATED, a California

Corporation, DBA All in One

Manufacturing; ALLINONELINE.COM,

an entity of unknown status; HARRIS

COHEN, an individual; KAREN

COHEN, an individual,

Defendants-Appellees.

No. 13-55796

DC No.

2:13 CV 00069-

GW-CW

OPINION

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Submitted May 6, 2015*

Pasadena, California

Filed July 13, 2015

* The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2)(C).
2 AMITY RUBBERIZED PEN CO. V. MKT. QUEST GRP.

Before: A. Wallace Tashima, Richard C. Tallman,

and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Tashima

SUMMARY**

Patent Law

The panel transferred a patent case to the Court of

Appeals for the Federal Circuit.

The panel concluded that the case unmistakably arose

under the patent laws where the plaintiff’s first two claims

asserted patent infringement and inducement of patent

infringement. Accordingly, they fell within the exclusive

appellate jurisdiction of the Federal Circuit, and the panel

lacked jurisdiction to resolve the merits of the appeal. Rather

than dismissing the appeal, the panel held that because the

appeal was neither frivolous nor filed in bad faith, the interest

of justice would be served by allowing the appeal to be heard

by the Federal Circuit, which would have had jurisdiction at

the time the notice of appeal was filed. The panel therefore

transferred the misfiled appeal to the Federal Circuit pursuant

to 28 U.S.C. § 1631.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
AMITY RUBBERIZED PEN CO. V. MKT. QUEST GRP. 3

COUNSEL

Sarah R. Wolk and Zachary Levine, Wolk & Levine LLP,

Glendale, California, for Plaintiff-Appellant.

Julie S. Turner, Turner Boyd LLP, Redwood City, California,

for Defendants-Appellees.

OPINION

TASHIMA, Circuit Judge:

This is a patent case. Congress has directed that appeals

of patent cases shall be heard by the Court of Appeals for the

Federal Circuit, and that other circuit courts, including this

court, do not have jurisdiction to decide such cases. See

28 U.S.C. § 1295(a)(1). Thus, this appeal should have been

filed with the Federal Circuit. Because, however, it was filed

with us, we must decide what to do with it. We hold that the

interest of justice would be served by allowing this case to be

heard by the Federal Circuit, and so order that it be

transferred to that court.

I.

This appeal is the latest chapter in an ongoing patent

dispute. For our purposes, the relevant facts are brief. 

Plaintiff Amity Rubberized Pen Company (“Amity”) holds

U.S. Patent No. 7,004,350 (the “’350 Patent”) for a device

that dispenses both toothpicks and tablets, such as mints. On

September 26, 2006, Amity sued Defendant Market Quest

Group, Inc., (“Market Quest”) alleging infringement of the

’350 Patent, inducement of patent infringement, and various
4 AMITY RUBBERIZED PEN CO. V. MKT. QUEST GRP.

related federal and state law claims. Amity’s counsel

withdrew during the trial, and the district court declared a

mistrial. The district court instructed Amity to retain new

counsel and to pay Market Quest’s costs and fees incurred in

connection with the aborted trial, and warned Amity that

failure to comply would result in dismissal. Amity refused to

pay Market Quest’s fees, and on July 12, 2010, the district

court dismissed the case with prejudice.

On January 4, 2013, Amity filed the present action,

alleging similar claims as in its previous action, including

patent infringement, induced infringement, false advertising

under the Lanham Act, intentional tortious interference, and

unfair competition. The patent claims were based on the ’350

Patent, just as the claims in the prior 2006 action had been. 

Market Quest moved to dismiss Amity’s later action, arguing

that the entire case was precluded by the 2010 dismissal of

the prior action under the doctrine of res judicata. The

district court agreed, concluding that Amity’s claims were

identical to those in its earlier complaint, except that they

concerned a different time frame, and dismissed the action. 

Amity timely appealed to this court, arguing that the defense

of res judicata does not apply to acts of patent infringement

that occurred after the previous dismissal.

II.

“We have jurisdiction to consider whether appellate

jurisdiction exists” and an obligation to ensure that we do not

act beyond the limits of our own jurisdiction. United States v.

Dunn, 728 F.3d 1151, 1155 (9th Cir. 2013). In general, our

appellate jurisdiction extends to most appeals from the United

States District Courts within the geographical boundaries of

this circuit. 28 U.S.C. § 1294. That jurisdiction is not
AMITY RUBBERIZED PEN CO. V. MKT. QUEST GRP. 5

without its limits, however, and there are certain subject areas

to which our jurisdiction does not extend. Relevant here,

Congress has granted the Federal Circuit “exclusive

jurisdiction . . . of an appeal from a final decision of a district

court of the United States . . . in any civil action arising under

. . . any Act of Congress relating to patents.” 28 U.S.C.

§ 1295(a)(1). The grant to the Federal Circuit of exclusive

jurisdiction of cases arising under federal patent law means,

by obvious and necessary implication, that we do not have

jurisdiction to hear appeals in such cases. See Breed v.

Hughes Aircraft Co., 253 F.3d 1173, 1179–80 (9th Cir. 2001).

“[A] case arises under the patent laws where ‘a

well-pleaded complaint establishes . . . that federal patent law

creates the cause of action.’” Id. at 1177 (quoting

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,

809 (1988) (second alteration in original)). The existence of

a single claim created by federal patent law is sufficient to

trigger the Federal Circuit’s exclusive appellate jurisdiction

over the entire case; the fact that a complaint also asserts nonpatent claims, or that non-patent issues will predominate, is

immaterial. Id. at 1178.

This case unmistakably arises under the patent laws. 

Amity’s first two claims assert patent infringement and

inducement of patent infringement. These claims rely on the

federal patent infringement statute, 35 U.S.C. § 271, and

therefore arise under federal patent law. Id. at 1177; see Dorf

& Stanton Commc’ns, Inc. v. Molson Breweries, 56 F.3d 13,

15 (2d Cir. 1995) (transferring consolidated cases to Federal

Circuit because one case included a claim of patent

infringement). As a result, this case falls within the exclusive

appellate jurisdiction of the Federal Circuit, and we lack

jurisdiction to resolve the merits of this appeal.
6 AMITY RUBBERIZED PEN CO. V. MKT. QUEST GRP.

III.

Although we lack jurisdiction to reach the merits, we need

not necessarily dismiss this appeal, which would deprive

Amity of any review of the district court’s decision.1 To

address situations where jurisdiction is lacking simply

because a case was filed with the wrong court, Congress has

granted federal courts the authority to transfer an action or

appeal to a federal court of competent jurisdiction. The

relevant statute provides:

Whenever a civil action is filed in a court as

defined in section 610 of this title or an

appeal, including a petition for review of

administrative action, is noticed for or filed

with such a court and that court finds that

there is a want of jurisdiction, the court shall,

if it is in the interest of justice, transfer such

action or appeal to any other such court in

which the action or appeal could have been

brought at the time it was filed or noticed, and

the action or appeal shall proceed as if it had

been filed in or noticed for the court to which

it is transferred on the date upon which it was

actually filed in or noticed for the court from

which it is transferred.

28 U.S.C. § 1631.

By its mandatory language, the statute directs us to

transfer a misfiled appeal as long as two requirements are

1 Amity cannot simply re-file its appeal with the Federal Circuit because

such a late appeal would be time-barred. See Fed. R. App. P. 4.
AMITY RUBBERIZED PEN CO. V. MKT. QUEST GRP. 7

met: (1) the court to which the appeal is to be transferred

would have had jurisdiction at the time the appeal was filed;

and (2) transfer is “in the interest of justice.” Id.; Munns v.

Kerry, 782 F.3d 402, 414 (9th Cir. 2015). The obligation to

address whether a case is transferrable lies with the court: “A

motion to transfer is unnecessary because of the mandatory

cast of section 1631’s instructions.” Harris v. McCauley (In

re McCauley), 814 F.2d 1350, 1352 (9th Cir. 1987). Having

determined that we lack jurisdiction, we must thus decide

whether this “appeal could have been brought at the time it

was filed” in the Federal Circuit and whether transfer would

be “in the interest of justice.” 28 U.S.C. § 1631.

A.

We have little difficulty in concluding that the Federal

Circuit would have had jurisdiction over this appeal had

Amity filed its appeal there instead of with this court. As

discussed above, 28 U.S.C. § 1295 gives the Federal Circuit

exclusive appellate jurisdiction over final decisions of district

courts in cases arising under federal patent law. “A ‘final

decision’ is ‘one which ends the litigation on the merits and

leaves nothing for the court to do but execute the judgment.’” 

Spread Spectrum Screening LLC v. Eastman Kodak Co.,

657 F.3d 1349, 1354 (Fed. Cir. 2011) (quoting Catlin v.

United States, 324 U.S. 229, 233 (1945)). The district court’s

dismissal of all of Amity’s claims constitutes a “final

decision” for purposes of § 1295. See Silicon Image, Inc. v.

Genesis Microchip Inc., 395 F.3d 1358, 1363 (Fed. Cir.

2005). The case also arises under patent law because Amity’s

complaint includes infringement claims for which “federal

patent law creates the cause of action.” Christianson,

486 U.S. at 809. The fact that the district court decided the

case on generally applicable res judicata grounds, rather than
8 AMITY RUBBERIZED PEN CO. V. MKT. QUEST GRP.

principles specific to patent law, is immaterial. See Cummins,

Inc. v. TAS Distrib. Co., 700 F.3d 1329, 1335 (Fed. Cir. 2012)

(exercising jurisdiction in patent suit where only issue on

appeal was application of state res judicata law).

Appellate jurisdiction also depends on the appellant filing

a timely notice of appeal. Bowles v. Russell, 551 U.S. 205,

214 (2007). The district court entered judgment on April 8,

2013, and Amity appealed on May 8, 2013, which was within

the 30-day limit for filing an appeal. See Fed. R. App. P. 4. 

Had Amity filed its appeal with the Federal Circuit at the time

it filed with this court, the appeal would have been timely. 

Thus, the Federal Circuit would have had jurisdiction at the

time Amity filed its notice of appeal.

B.

The next question we must answer is whether transfer

would be “in the interest of justice.” 28 U.S.C. § 1631. This

is a more complex question, and this circuit’s precedents do

not squarely define that term, although they do provide

significant guidance. Based on these precedents, we conclude

that transfer to the Federal Circuit would serve the interest of

justice.

1.

In general, this circuit has taken a broad view of when

transfer is appropriate, recognizing that “[n]ormally transfer

will be in the interest of justice because normally dismissal of

an action that could be brought elsewhere is ‘time-consuming

and justice-defeating.’” Miller v. Hambrick, 905 F.2d 259,

262 (9th Cir. 1990) (quoting Goldlawr, Inc. v. Heiman,

369 U.S. 463, 467 (1962)). At the same time, we have
AMITY RUBBERIZED PEN CO. V. MKT. QUEST GRP. 9

emphasized that transfer will often serve as a means to

prevent the injustice of penalizing a party for an honest

procedural mistake. Thus, we will “ordinarily find transfer to

be in the interest of justice where . . . the plaintiffs appear to

have been ‘unaware of or confused about the proper forum in

which to file [their] action.’” Munns, 782 F.3d at 415

(quoting Puri v. Gonzales, 464 F.3d 1038, 1043 (9th

Cir.2006)) (alteration in original). Similarly, we have

indicated that it is in the interest of justice to transfer a case

when the time period has elapsed to file in the appropriate

court. See Kennecott Corp. v. U.S. Dist. Ct. for S. Dist. of

Cal., 873 F.2d 1292, 1293 (9th Cir. 1989). More often,

however, we have simply found that, absent contravening

considerations, another court’s exclusive jurisdiction makes

transfer appropriate. See, e.g., McGuire v. United States,

550 F.3d 903, 914 (9th Cir. 2008) (“Given the uncontested

district court jurisdiction over the bankruptcy, coupled with

authority from the Federal Circuit Court of Appeals

indicating that the district court had jurisdiction over the

Tucker Act claim, we conclude it would be in the interest of

justice to transfer the action to the Court of Federal Claims,

rather than dismissing it.”); Breed, 253 F.3d at 1179-80 (“We

lack jurisdiction because the Court of Appeals for the Federal

Circuit has exclusive jurisdiction. 28 U.S.C. § 1295(a). We

therefore transfer the entire case to the Federal Circuit.”).

Conversely, we have rarely found that transfer would not

serve the interest of justice. For instance, we have stated that

transfer is not in the interest of justice if the appellant “was

aware of the proper procedure for review” but filed with a

different court for a bad-faith purpose, such as to circumvent

an earlier order of dismissal. See Puri, 464 F.3d at 1043. We

have also stated that transfer may not be in the interest of

justice if “the petition or appeal is frivolous,”
10 AMITY RUBBERIZED PEN CO. V. MKT. QUEST GRP.

Rodriguez-Roman v. INS, 98 F.3d 416, 424 (9th Cir. 1996),

as “[w]here no colorable claim for relief has been shown,”

Clark v. Busey, 959 F.2d 808, 814 (9th Cir. 1992). So long as

an appellant has made a colorable claim, however, even if its

support is “quite spare,” we have found it best to transfer and

“leave such issues to the court with jurisdiction over the

claims.” Munns, 782 F.3d at 415 n.9.

Drawing from these cases, we conclude that transfer will

generally be in the interest of justice, unless it is apparent that

the matter to be transferred is frivolous or was filed in bad

faith. This is a low bar and, as prior cases illustrate, it will

usually involve a very limited inquiry by the transferring

court. But this narrow scope is by design, as the interest of

justice will rarely be served by one court engaging in a

lengthy pre-transfer analysis, only ultimately to send the case

to a new court that must start afresh. Imposing such

unnecessary procedure and delay before the right court can

address the case on its merits is just the sort of

“time-consuming and justice-defeating” impediment transfer

is meant to avoid. Miller, 905 F.2d at 262 (quoting Goldlawr,

369 U.S. at 467). The sooner a case is transferred, the sooner

it can be resolved by the court Congress has designated to

hear it.

2.

We note that some of our sister circuits have adopted a

different formulation of the interest-of-justice inquiry. In

particular, in Phillips v. Seiter, the Seventh Circuit held that

in order to determine whether transfer would be in the interest

of justice, a court that lacks jurisdiction should “peek at the

merits” of the underlying action to determine whether a

particular case is meritorious enough to justify transfer. 
AMITY RUBBERIZED PEN CO. V. MKT. QUEST GRP. 11

173 F.3d 609, 610 (7th Cir. 1999). Several of our sister

circuits have followed suit. See, e.g., Daniel v. Am. Bd. of

Emergency Med., 428 F.3d 408, 436 (2d Cir. 2005); Haugh

v. Booker, 210 F.3d 1147, 1150 (10th Cir. 2000). The 

rationale for this approach is to avoid “rais[ing] false hopes

and wast[ing] judicial resources by transferring a case that is

clearly doomed.” Seiter, 173 F.3d at 610.

Seiter’s language – and the phrase “peek at the merits” in

particular – leaves substantial ambiguity about the scope of

a transferor court’s duty. Read narrowly, Seiter is not

necessarily inconsistent with our prior holdings that a court

need not transfer a frivolous appeal. See Britell v. United

States, 318 F.3d 70, 75 (1st Cir. 2003) (relying on Seiter for

the proposition that “if an action or appeal is fanciful or

frivolous, it is in the interest of justice to dismiss it rather than

to keep it on life support”). But some courts have read Seiter

and other “peek at the merits” cases to allow a substantially

wider scope of review. See, e.g., Daniel, 428 F.3d at 435

(citing Seiter for the proposition that “Courts enjoy

considerable discretion in deciding whether to transfer a case

in the interest of justice”). To the extent that a “peek at the

merits” inquiry would go beyond the narrow review outlined

by the above precedents, we reject it as inconsistent with our

case law. For purposes of this appeal, however, we need not

decide the precise extent to which our interest-of-justice

inquiry differs from those of our sister circuits.

3.

Applying these principles to the case before us, we

conclude that transfer would be in the interest of justice. 

Amity had nothing to gain by filing its appeal with this court

rather than the Federal Circuit, and nothing before us
12 AMITY RUBBERIZED PEN CO. V. MKT. QUEST GRP.

indicates that its misfiling was anything other than an honest

mistake. Its complaint contains a colorable claim of patent

infringement, and this appeal raises a non-frivolous question: 

whether the district court correctly concluded that Amity’s

patent infringement claims, which arose after judgment was

entered in the prior action, are barred by res judicata.

Accordingly, the interest of justice would be best served by

allowing a court of competent jurisdiction to address this case

on the merits.

IV.

We lack jurisdiction because this is a patent case, within

the exclusive jurisdiction of the Federal Circuit. 28 U.S.C.

§ 1295(a). Had this appeal been filed with the Federal Circuit

at the time it was filed with this court, the Federal Circuit

would have had jurisdiction. And because this appeal is

neither frivolous nor is there any indication that it was filed

in bad faith, we conclude that transfer is in the interest of

justice. We therefore order this matter transferred to the

Federal Circuit pursuant to 28 U.S.C. § 1631. The clerk shall

transmit all materials lodged with this court to the clerk of

that court. The award of costs shall abide the final resolution

of this appeal by the transferee court.

TRANSFERRED.