           NOTE: This order is nonprecedential.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.
                        ORDER
    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
2            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
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.


                                  FOR THE COURT

November 27, 2019                  /s/ Peter R. Marksteiner
     Date                          Peter R. Marksteiner
                                   Clerk of Court



ISSUED AS A MANDATE: November 27, 2019
