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Argentum Pharmaceuticals LLC v. Novartis Pharmaceuticals Corp.

On February 3, 2017, Apotex Inc. and Apotex Corp. (collectively, Apotex) filed a petition for inter partes review of Novartis Pharmaceuticals Corporation’s U.S. Patent No. 9,187,405. The Board instituted proceedings on July 18, 2017, and granted Sun Pharmaceutical Industries, Ltd., Sun Pharmaceutical Industries, Inc., and Sun Pharma Global FZE’s (collectively, Sun); Teva Pharmaceuticals USA, Inc. and Actavis Elizabeth LLC’s; and Argentum Pharmaceuticals LLC’s requests for joinder under 35 U.S.C. § 315(c). After institution, Patent Owner, Novartis, filed a contingent motion to amend. On July 11, 2018, the Board concluded that Apotex, Sun, Teva, Actavis, and Argentum (collectively, Petitioners) had not demonstrated unpatentability of the claims and denied the motion to amend as moot. Petitioners appealed the Board’s findings. During the appeal process, all Petitioners other than Argentum settled their respective appeal with Novartis.

On August 29, 2018, before opening briefs had been filed, Novartis filed a motion to dismiss Argentum’s appeal for lack of standing. Argentum opposed the motion on September 10, 2018, and included declarations of Jeffrey Gardner, Argentum’s CEO, and Anthony Tabasso, President and CEO of KVK-Tech, Inc., Argentum’s manufacturing and marketing partner. We directed Argentum and Novartis to address Argentum’s standing in their briefs, which they did. Initially, Argentum argued that we need not reach the issue of its standing because only one party must have standing for an action to proceed in an Article III Court, and “the other seven appellants undisputedly have standing.” Appellant’s Br. viii. Following the settlement of all parties other than Argentum, Novartis submitted a notice of supplemental authority under Federal Rule of Appellate Procedure 28(j) stating that “now that Argentum is the only appellant, Article III standing has become a threshold issue” and that we must assess our “jurisdiction under Article III of the Constitution before addressing the merits of the case.” D.I. 131 at 2 (citing Phigenix, Inc. v. Immunogen, Inc., 845 F.3d 1168, 1171 (Fed. Cir. 2017)).

Because we hold that Argentum lacks Article III standing, we dismiss the appeal and do not reach the merits of the Board’s ruling on the claims of the ’405 patent.

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