No Standing On Appeal From Board Decision After Abandoning Product Development

In Momenta Pharmaceuticals, Inc. v. Bristol-Meyers Squibb Co., No. 17-1694 (Fed. Cir. Feb. 7, 2019), the Federal Circuit dismissed for lack of standing Momenta’s appeal from a final written decision of the Board.

In 2015, Momenta filed a petition for inter partes review of Bristol-Meyers Squibb’s ’239 patent covering its Orencia® product. At that time, Momenta was reportedly attempting to develop a biosimilar counterpart to Orencia®. The Board sustained patentability, and Momenta appealed from that determination.

While Momenta’s appeal was pending, Momenta filed a letter with the Federal Circuit explaining that it would be ceasing its efforts to develop an Orencia® biosimilar. The Court asked Momenta to show cause why its appeal should not be dismissed. Momenta argued that it still retained an economic interest, by way of future royalties, in any development of an Orencia® biosimilar by a third party (Mylan). Soon thereafter, Momenta submitted another letter to the Court explaining it had also ceased its relationship with Mylan.

In light of Momenta’s abandoning development of any Orencia® biosimilar, the Court held that Momenta no longer had a legally protected interest in the validity of the ’239 patent. It likewise found Momenta’s argument that a potential future royalty could confer standing too speculative here. The Court accordingly dismissed Momenta’s appeal for lack of standing.