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Phigenix, Inc. v. Immunogen, Inc.

United States Court of Appeals, Federal Circuit

January 9, 2017

PHIGENIX, INC., Appellant
v.
IMMUNOGEN, INC., Appellee

         Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. IPR2014-00676.

          Gregory Lawrence Porter, Andrews Kurth Kenyon LLP, Houston, TX, argued for appellant. Also represented by Robert Alan Gutkin, Ping Wang, Michael Ye, Washington, DC.

          Eldora Ellison, Sterne Kessler Goldstein & Fox, PLLC, Washington, DC, argued for appellee. Also represented by Olga A. Partington, Pauline Pelletier, Byron Leroy Pickard, Eric K. Steffe.

          Before Dyk, Wallach, and HUGHES, Circuit Judges.

          WALLACH, Circuit Judge.

         Appellant Phigenix, Inc. ("Phigenix") sought inter partes review of U.S. Patent No. 8, 337, 856 ("the '856 patent"), alleging that claims 1-8 ("the Asserted Claims") of the subject patent are unpatentable as obvious over various prior art references. In its final written decision, the U.S. Patent and Trademark Office's ("USPTO") Patent Trial and Appeal Board ("PTAB") found the Asserted Claims nonobvious. See generally Phigenix, Inc. v. Immu-noGen, Inc., No. IPR2014-00676, 2015 WL 6550500 (P.T.A.B. Oct. 27, 2015).

         Phigenix appeals. We possess subject matter jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A) (2012). Because Phigenix has not offered sufficient proof establishing that it has suffered an injury in fact, it lacks standing to bring suit in federal court. We dismiss.

         Background

         The '856 patent generally relates to "huMab4D5 ANTI-ErbB2 antibody-maytansinoid conjugates." '856 patent, Title. The claimed methods of treatment purport to combat a variety of cancers. See id. col. 411. 26-42.

         The subject dispute involves three principal parties, each of whom allege to have some relation to the '856 patent. The first party, Appellee ImmunoGen, Inc. ("Im-munoGen"), is the assignee of the '856 patent. ImmunoGen provided the second party, Genentech Inc. ("Genentech"), with a "worldwide exclusive license" to the subject patent, which Genentech uses to produce the drug Kadcyla®' ("Kadcyla"). Phigenix, Inc. v. ImmunoGen, Inc., No. 2016-1544, Docket No. 23 at Ex. A, ¶ 3 (Fed. Cir. Mar. 4, 2016) (ImmunoGen's Mot. to Dismiss ("Immuno-Gen's MTD")); see id. at Ex. A, ¶ 2. The third party, Phigenix, describes itself "as a for-profit discovery stage biotechnology, pharmaceutical, and biomedical research company" that focuses "on the use of novel molecular therapeutics" designed to fight cancer. Phigenix, Inc. v. ImmunoGen, Inc., No. 2016-1544, Docket No. 26 at Ex. 1, ¶ 4 (Fed. Cir. Mar. 14, 2016) (Phigenix's Resp. to Immu-noGen's MTD ("Phigenix's Resp. to MTD")). Phigenix does not manufacture any products, but purportedly "has developed, and is developing, an extensive intellectual property portfolio" that includes U.S. Patent No. 8, 080, 534 ("the '534 patent"). Id. at Ex. 1, ¶ 5; see id. at Ex. 1, ¶ 7. Phigenix alleges that the '534 patent covers Genentech's "activities relating to Kadycla[]" and, thus, the subject matter claimed in the '856 patent. Id. at Ex. 1, ¶ 7; see id. at Ex. 1, ¶¶ 8-9, and Ex. 2, ¶ 14. Phigenix alleges that it "was forced" to bring litigation in various fora when Genentech refused its offer to license the '534 patent. Id. at Ex. 1, ¶ 8.

         In that vein, and "[t]o further its commercialization efforts with respect to its patent portfolio, " Phigenix sought inter partes review of the Asserted Claims of the '856 patent. Id. at Ex. 1, ¶ 10. When the PTAB found the Asserted Claims nonobvious, Phigenix sought further review in this court.

         Discussion

         I. Phigenix Lacks Article III Standing

         Before the parties fully briefed the subject appeal, ImmunoGen filed a motion to dismiss, asserting that Phigenix lacked standing to appeal the PTAB's Final Written Decision. See generally ImmunoGen's MTD. Phigenix opposed. See generally Phigenix's Resp. to MTD. A single judge of this court denied the Motion, "deem[ing] it the better course for the parties to address the standing issue in their briefs." Phige ...


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