Karlin Technology, Inc. v. Spine-Tech Inc., SPINE-TECH

• Decision Date: 03 July 1997
• Docket Number: No. 96-55318,SPINE-TECH,96-55318
• Citation: 117 F.3d 1425
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. KARLIN TECHNOLOGY, Inc.; Gary Karlin MICHELSON, M.D., Plaintiffs-Appellants, v.INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1425

117 F.3d 1425

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

KARLIN TECHNOLOGY, Inc.; Gary Karlin MICHELSON, M.D. Plaintiffs-Appellants, v. SPINE-TECH INC., Defendant-Appellee.

No. 96-55318.

United States Court of Appeals, Ninth Circuit.

Decided July 3, 1997.

Argued and Submitted June 4, 1997

Before: SCHROEDER, BRUNETTI and O'SCANNLAIN, Circuit Judges.

MEMORANDUM ^*

Plaintiffs Karlin Technology, Inc. and Gary Michelson, M.D., appeal from the district court's judgment granting judgment in favor of defendant, Spine-Tech Inc. The district court granted judgment on the pleadings on Karlin's Declaratory Judgment Act claim and granted summary judgment on Karlin's tortious interference and unfair competition claims. Karlin also appeals the district court's denial of its motion for leave to file a third amended complaint. We affirm.

Karlin first challenges the district court's holding that Count II of the Second Amended Complaint is essentially a patent dispute. Although the district court may have been incorrect in analogizing the action to an infringement action, see Spectronics Corp. v. H.B. Fuller Co., Inc., 940 F.2d 631, 636 (Fed.Cir.1991); cf. Becher v. Contoure Laboratories, Inc., 279 U.S. 388, 391 (1929), the district court had the discretion to decline jurisdiction in favor of Patent Office proceedings. See Wilton v. Seven Falls Co., 115 S.Ct. 2137, 2140-43 (1995).

On its claim of intentional interference with prospective economic advantage, Karlin claims that the record contains triable issues with respect to Spine-Tech's interference with Karlin's negotiations with Danek. We disagree. Karlin asserts that Spine-Tech's patent application was made with the intent to interfere with those Danek negotiations, but the patent application was made months before Spine-Tech could have known that the Zimmer co-license had been terminated or that Danek negotiations would ensue. The patent application could not have constituted intentional tortious interference with those negotiations. See Ramona Manor Convalescent Hosp. v. Care Enters., 225 Cal.Rptr. 120, 124 (Cal.Ct.App.1986).

Karlin also relies upon alleged statements by Spine-Tech's counsel concerning Karlin's ability to substitute Danek for Zimmer in all countries. There is no indication in the record that these statements...