ON MOTION
MICHEL, Chief Judge.ORDER
GlaxoSmithKline (GSK) moves to dismiss this appeal, from the United States District Court for the District of Maryland in 04-CV-02607, for lack of jurisdiction. GSK also moves for fees and costs. Clas-sen Immunotherapies, Inc. submits an opposition, out of time. GSK replies.
Classen sued the defendants for infringement. The district court granted motions to dismiss certain counts of Clas-sen’s complaint and granted Merck & Co., Inc.’s motion for summary judgment of noninfringement. However, Merck’s counterclaim for a declaratory judgment of invalidity remains pending and, indeed, a trial date has been set. Thus, there is no final judgment and any appeal is premature. Nystrom v. TREX Co., Inc., 339 F.3d 1347 (Fed.Cir.2003).
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted.
(2) The motion for fees is denied.
(3) Costs awarded to GSK.