Pair of Federal Circuit Decisions Address Standing to Appeal Adverse IPR Decision

In 2018 and 2019, ModernaTx, Inc. (Moderna) filed a pair of inter partes review petitions challenging the validity of two patents generally directed to RNA technology owned by Arbutus Biopharma Corp. (Arbutus). The Patent Trial and Appeal Board (“PTAB”) held that certain challenged claims of each patent were not unpatentable. On Dec. 1, 2021, a Federal Circuit panel of Judges Lourie, O’Malley, and Stoll issued two opinions, each authored by Judge Lourie and captioned ModernaTx, Inc. v. Arbutus Biopharma Corp., Nos. 2020-1184, -1186 (Fed. Cir. Dec. 1, 2021) (Moderna I) and No. 2020-2329 (Moderna II), holding that Moderna had standing to appeal only one of the two adverse decisions by the PTAB and otherwise affirming the PTAB’s findings on appeal and cross-appeal.

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