NOTE: This order is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`FISHER & PAYKEL HEALTHCARE LIMITED,
`Appellant
`
`v.
`
`RESMED LIMITED,
`Appellee
`______________________
`
`2018-2262
`______________________
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2017-
`00504.
`
`______________________
`
`ON MOTION
`______________________
`
`
`PER CURIAM.
`
`O R D E R
`Appellee ResMed Limited (“ResMed”) moves to dismiss
`
`this appeal for lack of subject matter jurisdiction. Specifi-
`cally, ResMed argues that appellant Fisher & Paykel
`Healthcare Limited (“Fisher”) lacks standing to maintain
`this appeal from an inter partes review (“IPR”) decision of
`the United States Patent and Trademark Office Patent
`
`
`
`
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`

`

`2
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`
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`FISHER & PAYKEL HEALTHCARE v. RESMED LIMITED
`
`Trial and Appeal Board (“the Board”). For the reasons set
`forth below, ResMed’s motion is granted.
`
`ResMed owns U.S. Patent 9,027,556 (“’556 patent”),
`which is directed to masks that can be used for treatment
`of sleep disordered breathing. ’556 patent col. 1 l. 16–19.
`In 2016, ResMed sued Fisher for patent infringement.
`Fisher petitioned for IPR, and the Board determined that
`Fisher had failed to demonstrate that any claims of the ’556
`patent are unpatentable. Fisher then appealed the Board’s
`decision to this court. After Fisher filed its notice of appeal,
`the parties settled the underlying litigation, and ResMed
`subsequently filed a motion to dismiss the appeal, arguing
`that Fisher lacks standing.
`
`Article III of the Constitution limits its grant of the ju-
`dicial power to “Cases” or “Controversies.” U.S. Const., art.
`III, § 2. While a party need not have Article III standing to
`file an IPR petition and obtain a decision from the Board,
`see Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2143–
`44 (2016), a party that appeals to this court from a decision
`of the Board must have standing under Article III for this
`court to consider the merits of the case. See Lujan v. De-
`fenders of Wildlife, 504 U.S. 555, 559–60 (1992); Arizonans
`for Official English v. Arizona, 520 U.S. 43, 64 (1997) (“The
`standing Article III requires must be met by persons seek-
`ing appellate review, just as it must be met by persons ap-
`pearing in courts of first instance.”).
`
`The appellant bears the burden of establishing stand-
`ing. See Phigenix, Inc. v. Immunogen, Inc., 845 F.3d 1168,
`1171 (Fed. Cir. 2017). In appeals from decisions of the
`Board, an appellant that is not facing a suit for infringe-
`ment or immediate threat of suit for infringement may
`nonetheless have standing to appeal a decision if it is cur-
`rently using claimed features of a patent or nonspecula-
`tively planning to do so. See AVX Corp. v. Presidio
`Components, Inc., 923 F.3d 1357, 1365 (Fed. Cir. 2019) (cit-
`ing E.I. DuPont de Nemours & Co. v. Synvina C.V., 904
`
`

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`FISHER & PAYKEL HEALTHCARE v. RESMED LIMITED
`
` 3
`
`F.3d 996, 1005 (Fed. Cir. 2019)). However, such plans must
`create a “substantial risk of future infringement” or be
`likely to “cause the patentee to assert a claim of infringe-
`ment.” JTEKT Corp. v. GKN Automative Ltd., 898 F.3d
`1217, 1221 (Fed. Cir. 2018).
` Here, Fisher has not met this standard. In supple-
`mental filings, Fisher has asserted that it continues to de-
`velop products that ResMed may at some future date allege
`infringe claims of the ’556 patent. However, Fisher has not
`provided any, let alone sufficient, detail regarding features
`of its future products to enable us to determine that its ac-
`tivities create a substantial risk of future infringement of
`the ’556 patent. Absent such a showing, Fisher cannot es-
`tablish standing to maintain this appeal, and this court
`lacks authority to consider the merits. Therefore, the ap-
`peal must be dismissed.
`
`IT IS ORDERED THAT:
`
`ResMed’s motion to dismiss the appeal is granted. The
`oral argument is therefore cancelled.
`
`
`
` /s/ Peter R. Marksteiner
`
`
` November 27, 2019
` Peter R. Marksteiner
` Date
` Clerk of Court
`
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` FOR THE COURT
`
`
`ISSUED AS A MANDATE: November 27, 2019
`
`