This is an appeal from a single judgment of the district court in two cases, both brought by CytoLogix Corp. against Ventana Medical Systems, Inc. One of the two district court cases, No. 01-10178, was a patent infringement action; the other, No. 01-12231, was an antitrust/misappropriation action. After two trials, both combining claims from each action, the district court entered final judgment on all claims. Although there was no formal order of consolidation before those trials, the district court later entered an order stating that, in actuality, the cases were consolidated for trial and ordering that they be consolidated, nunc pro tunc, as of the commencement of the first trial. CytoLogix then filed two identical notices of appeal from the consolidated judgment, one in this court and one in the Court
of Appeals for the Federal Circuit.
Ventana has now moved to dismiss the appeal to this court for lack of jurisdiction and has also sought sanctions under Rule 38 of the Federal Rules of Appellate Procedure. CytoLogix opposes dismissal and sanctions but concedes that its appeal of the disposition of its patent claims should be transferred to the
Federal Circuit. In the alternative, CytoLogix requests that the entire appeal be transferred to the Federal Circuit rather than dismissed. For the reasons discussed below, we dismiss the appeal
but deny sanctions.
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