from the United States Patent and Trademark Office, Patent
Trial and Appeal Board in No. IPR2015-01537.
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,
Christopher Neil Sipes, Covington & Burling LLP,
Washington, DC, argued for appellee. Also represented by
Bradley Keith Ervin, Megan Patricia Keane, George Frank
William Barnett Schultz, Zuckerman Spaeder LLP, Washington,
DC, for amicus curiae Association for Accessible Medicines.
Also represented by Carlos T. Angulo, Jeremy Kreisberg.
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
Newman, Dyk, and Chen, Circuit Judges.
NEWMAN, CIRCUIT JUDGE.
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"). The appeal is dismissed for absence of
standing/jurisdiction and for mootness.
'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
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.
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.
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 ...