Federal Circuit: Plans For Future Activity Created A Substantial Risk Of Future Infringement

Restem, LLC v. Jadi Cell, LLC (Fed. Cir. Mar. 4, 2025) (Moore, Schall, and Taranto) (on appeal from Patent Trial and Appeal Board) [INHERENT ANTICIPATION, CLAIM CONSTRUCTION, STANDING]

Restem filed a petition for inter partes review of U.S. Patent No. 9,803,176, directed to stem cells obtained from umbilical cord tissue and isolated through a two-step process to create a specific cell marker expression profile. The Board held all challenged claims were not shown to be unpatentable. Restem appealed. The Federal Circuit found Restem had Article III standing, despite no litigation in the U.S., because Restem's plans for future activity created a substantial risk of future infringement. The Federal Circuit subsequently affirmed the Board's (i) constructions of the "placing" step and "an isolated cell" term; and (ii) findings that the prior art did not inherently anticipate—or render obvious for the same reasons—the '176 Patent.