The Federal Circuit held that Phigenix, Inc. (Petitioner) cannot appeal an inter partes review decision upholding a patent that it challenged and was owned by Immunogen, Inc. (Patent Owner) because the petitioner lacked standing. Generally, to have standing, a party “must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the [appellee], and (3) that is likely to be redressed by a favorable judicial decision.”
The Federal Circuit held that the petitioner lacked standing because it had not offered sufficient proof establishing that it had suffered an injury in fact. “[T]he injury in fact requirement requires [the petitioner] to allege an injury that is both concrete and particularized.” The petitioner did not contend that it faced a risk of infringing the patent, that it is an actual or prospective licensee of the patent, or that it otherwise plans to take any action that would implicate the patent. Instead, the petitioner argued that its licensing efforts of its own patent portfolio was encumbered by the patent owner’s patent which was licensed to others. The Federal Circuit stated that while it is possible that the petitioner’s licensing revenues might have increased if the patent was invalidated, there was simply no allegation that the petitioner ever licensed its portfolio to anyone, much less to those who have licensed the patent owner’s patent.