As we previously reported, Pfizer recently filed a notice that it will not participate in the appeal of the final written decision of IPR2017-01168, which found all claims of U.S. Patent No. 8,821,873 unpatentable. The ‘873 patent is directed to a method of treating lymphoma with anti-CD20 antibodies. On March 21, the United States filed a notice to exercise its statutory right to intervene in the appeal under 28 U.S.C. § 2403(a) to defend the constitutionality of the Act of Congress that Biogen is challenging. 28 U.S.C. § 2403(a) states: “In any action . . . in a court of the United States to which the United States . . . is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn into question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene . . . for argument on the question of constitutionality.” Biogen had previously provided notice to the Court that its appeal questions the constitutionality of inter partes review as provided by the Leahy-Smith America Invents Act (“AIA”) in connection with IPR2017-01168, and the Court subsequently ordered the United States to inform the Court if it intended to intervene.
In light of Pfizer’s notice of non-participation, the Federal Circuit is likely to extend an invitation to the USPTO to provide it the opportunity to intervene under 35 U.S.C. § 143 to defend the PTAB’s final written decision.