In Phigenix Inc., v. Immunogen Inc., Phigenix sought inter partes review of U.S. Patent No. 8,337,856 alleging that claims 1-8 were unpatentable as obvious over various prior art references. The PTAB found that the asserted claims were nonobvious. Phigenix appealed the PTAB's decision to the Federal Circuit. ImmunoGen filed a motion to dismiss for lack of standing.
The Federal Circuit recognized that while Article III standing is not necessarily a requirement to appear before an administrative agency, an appellant must nevertheless supply the requisite proof of an injury in fact when it seeks review of an agency's final action in federal court. The Federal Circuit noted that an injury in fact requires two elements: (1) a concrete injury, that is an actual harm or a harm which appears imminent, a conjectural or hypothetical injury is insufficient; and (2) that the injury is particularized, that is the injury affects an appellant in a personal and individual way.
In this case the Federal Circuit held that Phigenix failed to supply the requisite proof on an injury in fact and ImmunoGen's motion to dismiss was granted. In particular, the Federal Circuit noted that Phigenix had initiated the inter partes review proceeding for the purpose of challenging a competitor’s patent not because Phigenix was concerned about infringement, but because the competitor’s patent allegedly interfered with Phigenix’s efforts to license its own patents directed to a similar technology. The Federal Circuit concluded that this did not constitute a concrete injury and thus Phigenix lacked standing.