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Momenta Pharmaceuticals, Inc. v. Bristol-Myers Squibb Company

United States Court of Appeals, Federal Circuit

February 7, 2019

MOMENTA PHARMACEUTICALS, INC., Appellant
v.
BRISTOL-MYERS SQUIBB COMPANY, Appellee

          Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. IPR2015-01537.

          Deanne Maynard, Morrison & Foerster LLP, Washington, DC, argued for appellant. Also represented by Seth W. Lloyd, Brian Robert Matsui, Joseph R. Palmore; Brian M. Kramer, San Diego, CA.

          Christopher Neil Sipes, Covington & Burling LLP, Washington, DC, argued for appellee. Also represented by Bradley Keith Ervin, Megan Patricia Keane, George Frank Pappas.

          William Barnett Schultz, Zuckerman Spaeder LLP, Washington, DC, for amicus curiae Association for Accessible Medicines. Also represented by Carlos T. Angulo, Jeremy Kreisberg.

          Brian Matthew Boynton, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, for amici curiae Pharmaceutical Research and Manufacturers of America, Biotechnology Innovation Organization. Also represented by Christopher Asta, Thomas Saunders.

          Before Newman, Dyk, and Chen, Circuit Judges.

          NEWMAN, CIRCUIT JUDGE.

         Momenta Pharmaceuticals, Inc. ("Momenta") appeals the decision of the Patent Trial and Appeal Board ("PTAB" or "Board") sustaining patentability of claims 1 through 15 (all the claims) of United States Patent No. 8, 476, 239 ("the '239 Patent") owned by Bristol-Myers Squibb Company ("BMS").[1] The appeal is dismissed for absence of standing/jurisdiction and for mootness.[2]

         Background

         The '239 Patent, entitled "Stable Protein Formulations," describes and claims specific fluid formulations of the protein molecule CTLA4Ig (cytotoxic T-lymphocyte associated protein 4 immunoglobulin), an immunosuppressive agent used in treatment of immune system disorders such as rheumatoid arthritis. The product has the common name "abatacept" and the BMS brand name Orencia®.

         Momenta in July 2015 petitioned the United States Patent & Trademark Office ("PTO") for Inter Partes Review of the '239 Patent, in accordance with the post-grant review provisions of the America Invents Act, codified at 35 U.S.C. § 311 et seq. At that time Momenta was reportedly attempting to develop a biosimilar counterpart of Orencia®. The PTAB instituted review, conducted trial, and sustained patentability of the '239 Patent claims.

         Momenta filed an appeal to the Federal Circuit, as provided by 35 U.S.C. § 319:

35 U.S.C. § 319. Appeal
A party dissatisfied with the final written decision of the Patent Trial and Appeal Board under section 318(a) may appeal the decision pursuant to sections 141 [appeal to the Federal Circuit] through 144. Any party to the inter partes review shall have the right to be a party to the appeal.

         BMS moved to dismiss the appeal, stating that Momenta does not have standing to invoke federal court jurisdiction, citing the constitutional requirements of Article III. BMS stated that Momenta's proposed ...


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