Last week, the United States Court of Appeals for the Federal Circuit issued a decision in General Electric Co. v. United Technologies Corp., which continued the trend that a losing inter partes review petitioner who has not been sued by the patent owner will not have standing to appeal to the Federal Circuit. Still, the case is noteworthy for several reasons. In this case, United Technologies Corporation (UTC) was the assignee of U.S. Patent No. 8,511,605 (“the ’605 patent). The ’605 patent is generally directed to a gas turbine engine. On January 29, 2016, without having been used or having had a lawsuit threatened, General Electric Company (GE) filed an IPR petition challenging claims 1 and 2 of the ’605 patent on grounds of anticipation and claims 7–11 of the ’605 patent on grounds of obviousness. After institution, UTC disclaimed claims 1 and 2, leaving only claims 7–11 at issue. On June 26, 2017, the Patent Trial and Appeal Board (PTAB) issued a Final Written Decision concluding GE had not shown by a preponderance of the evidence that claims 7–11 of the ’605 patent were unpatentable for obviousness. GE then appealed to Federal Circuit.
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