Immunogen, Inc. v. Coke Morgan Stewart, Acting Under Secretary of Commerce for Intellectual Property

United States Court of Appeals
for the Federal Circuit
______________________
IMMUNOGEN, INC.,
Plaintiff-Appellant
v.
COKE MORGAN STEWART, ACTING UNDER
SECRETARY OF COMMERCE FOR
INTELLECTUAL PROPERTY AND ACTING
DIRECTOR OF THE UNITED STATES PATENT
AND TRADEMARK OFFICE,
Defendant-Appellee
______________________
2023-1762
______________________
Appeal from the United States District Court for the
Eastern District of Virginia in No. 1:20-cv-00274-TSE-
LRV, Judge T. S. Ellis, III.
______________________
Decided: March 6, 2025
______________________
M ICHAEL A. M ORIN, Latham & Watkins LLP, Washing-
ton, DC, argued for plaintiff-appellant. Also represented
by G ABRIEL K. BELL, DAVID FRAZIER ; YI S UN, San Diego,
CA.
D ANIEL KAZHDAN, Office of the Solicitor, United States
Patent and Trademark Office, Alexandria, VA, argued for
defendant-appellee. Also represented by PETER J. AYERS,
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IMMUNOGEN , INC . v. STEWART 2
M ARY L. KELLY, WILLIAM LA MARCA, FARHEENA YASMEEN
RASHEED; JESSICA D. ABER , M ATTHEW JAMES MEZGER , Of-
fice of the United States Attorney for the Eastern District
of Virginia, United States Department of Justice, Alexan-
dria, VA.
______________________
Before L OURIE , DYK, and PROST, Circuit Judges.
LOURIE, Circuit Judge.
This case, arising from a civil action to obtain a patent
under 35 U.S.C. § 145, returns to this court following a re-
mand in ImmunoGen, Inc. v. Hirshfeld, No. 2021-1939,
2022 WL 885774 (Fed. Cir. Mar. 25, 2022) (“ImmunoGen
II”). Following vacatur of the district court’s grant of sum-
mary judgment in favor of the government, the case pro-
ceeded to a bench trial on the question whether
ImmunoGen, Inc. is entitled to a patent for the invention
claimed in U.S. Patent Application 14/509,809 (“the ’809
application”).1 Determining that the claims of the applica-
tion are “fatally indefinite and obvious,” and that the
claims are unpatentable under the doctrine of obviousness-
type double patenting, the district court entered judgment
in favor of the government, denying ImmunoGen’s claim
for entitlement to a patent. ImmunoGen, Inc. v. Vidal,
653 F. Supp. 3d 258, 307 (E.D. Va. 2023) (“Decision”). We
affirm.
BACKGROUND
The ’809 application, having a priority date of October
8, 2013, is directed to a dosing regimen for administering
IMGN853 (i.e., mirvetuximab soravtansine), a patented
antibody drug conjugate (“ADC”) used for treating certain
ovarian and peritoneal cancers. Specifically, IMGN853 is
1 The ’809 application published on May 14, 2015, as
U.S. Patent Application Publication 2015/0132323.
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IMMUNOGEN , INC . v. STEWART 3
a conjugate of (1) an antibody known as “huMov19,” (2) a
toxic maytansinoid payload known as “DM4,” and (3) a
charged chemical linker known as “charged sulfo-SPDB
linker.” Decision, 653 F. Supp. 3d at 269. The ’809 appli-
cation explains that, although IMGN853 exhibits promise
as a cancer therapy, it can cause ocular toxicity in humans,
resulting in keratitis and blurred vision. The inventors
therefore set out to develop “a therapeutically effective dos-
ing regimen [of IMGN853] that results in minimal adverse
effects.” ’809 application, J.A. 209.
The ’809 application contains three independent
claims, of which claim 1 is representative:
1. A method for treating a human patient having
an FOLR1-expressing ovarian cancer or cancer
of the peritoneum comprising administering to
the patient an immunoconjugate which binds to
FOLR1 polypeptide,
wherein the immunoconjugate comprises an an-
tibody or antigen-binding fragment thereof that
comprises the variable light chain (VL) comple-
mentarity determining region (CDR)-1, VL
CDR-2, VL CDR-3, variable heavy chain (VH)
CDR-1, VH CDR-2, and VH CDR-3 of SEQ ID
NOs: 6-9, 11, and 12, respectively, and a may-
tansinoid, and
wherein the immunoconjugate is administered
at a dose of 6 milligrams (mg) per kilogram (kg)
of adjusted ideal body weight (AIBW) of the pa-
tient.
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IMMUNOGEN , INC . v. STEWART 4
J.A. 6574 (disputed “dosing limitation” emphasized).2 It is
undisputed that “[a] method of using IMGN853 to treat
FOLR1-expressing ovarian cancer or peritoneum cancer
was known in the art” at the time of the invention.
J.A. 12176, ¶ 34. Accordingly, the patentability of the
claims of the ’809 application turns only on the dosing lim-
itation.
After a patent examiner rejected the claims of the ’809
application and the Patent Trial and Appeal Board (“the
Board”) affirmed, ImmunoGen brought suit in the U.S. Dis-
trict Court for the Eastern District of Virginia, seeking a
judgment pursuant to 35 U.S.C. § 145 that would declare
ImmunoGen’s entitlement to a patent for the claimed in-
vention. At summary judgment, the government argued
that the claims are unpatentable because (1) the claimed
“AIBW” renders the claims indefinite; (2) the dosing limi-
tation renders the claims obvious over the asserted prior
art; and (3) the claims are unpatentable under the doctrine
of obviousness-type double patenting. The district court
agreed with the government that, as a matter of law, there
was no genuine dispute of material fact as to any of those
issues and entered judgment in the government’s favor.
ImmunoGen, Inc. v. Iancu, 523 F. Supp. 3d 773, 799 (E.D.
Va. 2021) (“ImmunoGen I”). We vacated and remanded,
observing that “the district court resolved numerous fac-
tual disputes against non-movant ImmunoGen, an error
that [was] fatal to its ultimate ruling.” ImmunoGen II,
2022 WL 885774, at *1.
Following remand, the case proceeded to a three-day
bench trial. Based on the evidence presented, the district
2 The claims at issue at trial were 242, 252–55,
258–65, 300, 317–25, 329–30, 341–49, and 354. Decision,
653 F. Supp. 3d at 272; ImmunoGen Br. 12 n.5. However,
because all claims recite the dosing limitation at issue, the
parties cite claim 1 as representative. We do the same.
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IMMUNOGEN , INC . v. STEWART 5
court again determined that the claims are “fatally indefi-
nite.” Decision, 653 F. Supp. 3d at 289. The district court
explained that the ’809 application “fails to define
AIBW . . . anywhere in its claims.” Id. That the claims did
not define the term was particularly important because the
district court found that the intrinsic and extrinsic evi-
dence established that there are various formulas for
AIBW from which a person of ordinary skill in the art could
have chosen. See id. Accordingly, the court determined
that the claims fail to inform a person of ordinary skill in
the art with reasonable certainty of the scope of the inven-
tion. See id. at 285, 289. The court further determined that
the claims are unpatentable as obvious over ImmunoGen’s
own prior art that discloses treatment of ovarian and peri-
toneal cancers with IMGN853 using “total body weight,” or
“TBW,” dosing, and other prior art disclosing AIBW dosing
for other compounds. Specifically, it found that a person of
ordinary skill in the art would have been motivated to ar-
rive at the claimed dosing limitation because “(i) the prob-
lem of ocular toxicity was known, (ii) skilled artisans
understood that changing the dose was a possible solution
for adverse side effects such as ocular toxicity, and (iii) the
prior art disclosed AIBW dosing as a potential means to
eliminate or ameliorate ocular toxicity.” Id. at 300. In the
court’s view, even the unpredictability of immunoconju-
gates was insufficient to overcome that obviousness deter-
mination. Id. The court entered judgment on those bases.3
3 As noted above, the government further challenged
the patentability of the claims under the doctrine of obvi-
ousness-type double patenting, which the district court re-
solved in its favor. See id. at 306–07. On appeal, the
parties agree that that issue rises and falls with the issue
of obviousness, ImmunoGen Br. 2; Gov’t Br. 21, so they do
not brief it separately. We therefore do not address it fur-
ther.
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IMMUNOGEN , INC . v. STEWART 6
ImmunoGen timely appealed. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(4)(C).
D ISCUSSION
ImmunoGen argues that the district court erred in
each of its indefiniteness and obviousness analyses. Be-
cause we affirm the district court’s judgment on obvious-
ness grounds, as discussed below, we need not address
indefiniteness.
I
“Obviousness is a question of law, which we review de
novo, with underlying factual questions, which we review
for clear error following a bench trial.” Honeywell Int’l, Inc.
v. United States, 609 F.3d 1292, 1297 (Fed. Cir. 2010). “A
finding is ‘clearly erroneous’ when although there is evi-
dence to support it, the reviewing court on the entire evi-
dence is left with the definite and firm conviction that a
mistake has been committed.” United States v. U.S. Gyp-
sum Co., 333 U.S. 364, 395 (1948); accord Galderma
Lab’ys, L.P. v. Lupin Inc., 122 F.4th 902, 907 (Fed. Cir.
2024). “If the district court’s account of the evidence is
plausible in light of the record viewed in its entirety, the
court of appeals may not reverse it even though convinced
that had it been sitting as the trier of fact, it would have
weighed the evidence differently.” Anderson v. City of Bes-
semer City, 470 U.S. 564, 573–74 (1985).
To determine whether a particular claimed invention
would have been obvious over cited prior art, a factfinder
must consider, among other things, whether “a skilled ar-
tisan would have been motivated to combine the teachings
of the prior art references to achieve the claimed invention,
and [whether] the skilled artisan would have had a reason-
able expectation of success in doing so.” Novartis Pharms.
Corp. v. W.-Ward Pharms. Int’l Ltd., 923 F.3d 1051, 1059
(Fed. Cir. 2019). “The presence or absence of a motivation
to combine references in an obviousness determination is a
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IMMUNOGEN , INC . v. STEWART 7
pure question of fact.” PAR Pharm., Inc. v. TWI Pharms.,
Inc., 773 F.3d 1186, 1196 (Fed. Cir. 2014) (quoting Alza
Corp. v. Mylan Lab’ys, Inc., 464 F.3d 1286, 1289 (Fed. Cir.
2006)). “The presence or absence of a reasonable expecta-
tion of success is also a question of fact.” Id.
II
ImmunoGen first argues that the district court erred in
its motivation-to-combine analysis because it was undis-
puted that at the time of the invention, a person of ordinary
skill in the art would not have known that IMGN853
caused ocular toxicity in humans. According to Immuno-
Gen, because “[t]here was no motivation to solve the prob-
lem of ocular toxicity,” the claimed dosing limitation could
not have been obvious. ImmunoGen Br. 34. We disagree.
As an initial matter, although ImmunoGen is correct
that “[w]here a problem was not known in the art, the so-
lution to that problem may not be obvious,” Forest Lab’ys,
LLC v. Sigmapharm Lab’ys, LLC, 918 F.3d 928, 935 (Fed.
Cir. 2019), it does not follow that a claimed solution to an
unknown problem is necessarily non-obvious. See Immu-
noGen Br. 35. Indeed, the Supreme Court has made clear
that “[i]n determining whether the subject matter of a pa-
tent claim [was] obvious, neither the particular motivation
nor the avowed purpose of the patentee controls. What
matters is the objective reach of the claim.” KSR Int’l Co.
v. Teleflex Inc., 550 U.S. 398, 419 (2007); id. at 420 (“Under
the correct analysis, any need or problem known in the field
of endeavor at the time of invention and addressed by the
patent can provide a reason for combining the elements in
the manner claimed.” (emphasis added)); see Janssen
Pharms., Inc. v. Teva Pharms. USA, Inc., 97 F.4th 915, 929
(Fed. Cir. 2024) (“[A]lthough identifying a recognized prob-
lem or need in the prior art is one way to demonstrate mo-
tivation . . . the motivation analysis is not limited by the
problem or need recognized by the inventors.”); Alcon
Rsch., Ltd. v. Apotex Inc., 687 F.3d 1362, 1368 (Fed. Cir.
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IMMUNOGEN , INC . v. STEWART 8
2012) (“We have repeatedly held that the motivation to
modify a prior art reference to arrive at the claimed inven-
tion need not be the same motivation that the patentee
had.”). Accordingly, that the specific problem the inventors
of the ’809 application purported to solve via the claimed
dosing regimen was unknown does not necessarily mean
that the dosing regimen itself was not obvious. We there-
fore do not find ImmunoGen’s argument on this point per-
suasive.
In any event, after expressly acknowledging that the
prior art does not “specifically disclose[] that IMGN853
caused ocular toxicity in humans,” Decision, 653 F. Supp.
3d at 278, the district court proceeded to explain that be-
cause ocular toxicity was “a well-known adverse event in
the administration of immunoconjugates that contain as a
toxic payload the maytansinoid known as DM4,” id. at 268
(footnote omitted), and because IMGN853 includes that
DM4 payload, id., a person of ordinary skill in the art
“would [have] underst[oo]d the potential risk of ocular tox-
icity and would [have] monitor[ed] for ocular toxicity when
testing IMGN853 in humans,” id. at 269. See id. at 292.
As the district court found, experts for each of ImmunoGen
and the government agreed that “even though rabbits did
not experience ocular toxicity when given IMGN853, pre-
clinical results do not always translate to clinical safety
when the same drug is tested in humans.” Id. at 269 (foot-
note omitted). We therefore see no clear error in the dis-
trict court’s findings that a person of ordinary skill in the
art, despite not knowing of IMGN853’s ocular toxicity,
would have nonetheless been motivated to monitor for
those side effects when administering the drug to humans.
Next, ImmunoGen argues that the district court clearly
erred in finding that a person of ordinary skill in the art
would have been motivated to try AIBW dosing as a dosing
methodology for IMGN853 to eliminate ocular toxicity. In
that regard, the district court found that it would have
been obvious “to experiment with changing the dosing
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IMMUNOGEN , INC . v. STEWART 9
methodology to reduce toxicity while preserving the thera-
peutic effects” of IMGN853 because drug toxicities, includ-
ing those associated with the DM4 payload, are “usually
dose-related.” Id. at 278 (quoting J.A. 13150). And it found
that AIBW was a known dosing methodology for both large
and small anticancer drugs. Id. at 279, 291. Further still,
the district court found that the prior art discloses the use
of AIBW “to reduce ocular toxicity in patients receiving the
[antibiotic] drug ethambutol” and that, prior to the critical
date, “researchers were motivated to try AIBW dosing in
order to reduce toxic side effects in a clinical study on a
radioimmunoconjugate.” Id. at 279. The district court
therefore concluded that, based on the evidence, a person
of ordinary skill in the art would have understood AIBW to
be a “potential solution for ocular toxicity” and that it
would have been obvious “to experiment with AIBW in at-
tempting to eliminate or ameliorate the toxicities associ-
ated with IMGN853.” Id. at 294. Again, we see no clear
error in these findings.
Nevertheless, ImmunoGen argues on appeal that
“[j]ust because AIBW preexisted the ’809 application, that
does not mean it would [have] be[en] obvious to try—par-
ticularly when no ADC had ever been dosed using AIBW
before.” ImmunoGen Br. 39. In ImmunoGen’s view, the
district court “simply plucked AIBW dosing out of [a] mul-
titude of possibilities without explaining the required mo-
tivation for selecting this particular dosing methodology.”
Id. at 40. We disagree.
The district court’s findings, which are not clearly erro-
neous, reasonably support the conclusion that AIBW dos-
ing, though never used for ADCs, would have been within
the range of knowledge of a person of ordinary skill in the
art when confronted with dosing-induced toxicities, and
particularly when confronted with dosing-induced ocular
toxicity. AIBW dosing was a well-known methodology that
had been implemented on drugs both smaller and larger
than IMGN853 and had been used to specifically reduce
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IMMUNOGEN , INC . v. STEWART 10
ocular toxicity. Furthermore, the primary prior-art refer-
ence relied upon by the district court and parties, U.S. Pa-
tent Application Publication 2012/0282282 (“Lutz
’282”)—ImmunoGen’s own publication which discloses
IMGN853 and the relationship between the DM4 payload
and ocular toxicity—discloses that “[t]he dosing regimen
and dosages of [the disclosed ADCs] will depend on the par-
ticular cancer being treated, the extent of the disease and
other factors familiar to the physician of skill in the art and
can be determined by the physician.” Lutz ’282, ¶ 252 (em-
phasis added); id. (“One of skill in the art can review the
[Physician’s Desk Reference] . . . to determine dosing regi-
mens and dosages of the [disclosed ADCs].”). Immuno-
Gen’s argument that a person of ordinary skill in the art
would not have been motivated to try AIBW dosing with
IMGN853 is unpersuasive.
We turn now to the question whether the district court
clearly erred in determining that a person of ordinary skill
in the art would have been motivated to select the claimed
dose of 6 mg/kg AIBW with a reasonable expectation of suc-
cess. By way of background, this case requires familiarity
with three different weight-based dosing methodologies: to-
tal body weight, ideal body weight, and AIBW. Total body
weight, or “TBW,” is a patient’s actual body weight. Ideal
body weight, or “IBW,” is “an estimate of weight corrected
for sex and height, and optionally frame size.” ’809 appli-
cation, J.A. 157 ¶ 69. Finally, AIBW “refers to a size de-
scriptor that accounts for sex, total body weight, and
height.” Id., J.A. 158 ¶ 71. As the district court found, as
of the ’809 application’s critical date, “there were many
ways to define AIBW, all of which involved a variation of
the following generic formula, wherein ‘CF’ stands for ‘cor-
rection factor’”:
AIBW = IBW + CF(weight in kg – IBW)
Decision, 653 F. Supp. 3d at 274; see ’809 application,
J.A. 158 ¶ 71 (using 0.4 for CF). To put those three
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IMMUNOGEN , INC . v. STEWART 11
measurements into useful context, “patients who weigh ex-
actly their ideal body weight receive an identical dose of
IMGN853 when dosed based on either AIBW or TBW.” De-
cision, 653 F. Supp. 3d at 283.
With that understanding in mind, the district court
found that Lutz ’282 discloses dosing IMGN853 at around
6 mg/kg of TBW of the patient and that a 2013 abstract
from the American Society of Clinical Oncology discloses
that IMGN853 had been tested on humans at a dose of
5 mg/kg TBW. Id. at 275–76. Therefore, given that AIBW
dosing was well known in the prior art, id. at 294, the dis-
trict court concluded that a person of ordinary skill in the
art “would start with doses of around 5 mg/kg or 6 mg/kg
AIBW and then determine the precise dose based on rou-
tine optimization.” Id. Indeed, as the district court found,
“for patients who weigh exactly their ideal body weight, a
dose of 6 mg/kg AIBW is identical to a dose of 6 mg/kg
TBW,” which is expressly disclosed as a suitable dose in
Lutz ’282. Id. at 297; see id. at 298 (noting expert wit-
nesses’ agreement that a patient at her ideal body weight
“will receive the same amount of IMGN853 regardless []
whether she is dosed based on TBW or AIBW.”). Thus, Im-
munoGen’s argument that “[i]t is particularly perverse to
suggest that Lutz ’282’s dose of 6 mg/kg TBW would have
led to the dose of 6 mg/kg AIBW,” ImmunoGen Br. 49, falls
short because, in at least some cases, 6 mg/kg AIBW is
identical to 6 mg/kg TBW, as disclosed in Lutz ’282. See
Decision, 653 F. Supp. 3d at 297 (explaining that the ’809
application “in effect seeks to cover a dose that was already
disclosed in the prior art.”).
As the district court aptly recognized, to hold otherwise
“would prevent doctors from practicing what is already dis-
closed in the prior art for patients at their ideal body
weight.” Decision, 653 F. Supp. 3d at 298. We have ex-
plained that if “the disclosure is sufficient to show that the
natural result flowing from the operation as taught would
result in the performance of the questioned function, it
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IMMUNOGEN , INC . v. STEWART 12
seems to be well settled that the disclosure should be re-
garded as sufficient.” PAR Pharm., 773 F.3d at 1195 (quot-
ing In re Oelrich, 666 F.2d 578, 581 (CCPA 1981)). That is
the case here. A doctor dosing a patient at his or her IBW
with IMGN853 at a dose of 6 mg/kg TBW would necessarily
be dosing that patient at 6 mg/kg AIBW, as claimed. This
would be true regardless whether a doctor knew of AIBW
dosing.
ImmunoGen’s final challenge is that, even if a person
of ordinary skill in the art would have been motivated to
use AIBW dosing to eliminate ocular toxicity with a rea-
sonable expectation of success, the district court clearly
erred because it “d[id] not actually hold that a skilled arti-
san had a reasonable expectation of success that a 6 mg/kg
AIBW dose would solve ocular toxicity,” which ImmunoGen
argues is unpredictable. ImmunoGen Br. 50–51 (emphasis
added). But ImmunoGen’s framing of the reasonable-ex-
pectation-of-success analysis is inapt. As noted above, the
obviousness inquiry is generally agnostic to the particular
motivation of the inventor. See KSR Int’l, 550 U.S. at 419.
That means that in this case the district court was not re-
quired to determine that a person of ordinary skill in the
art would have had a reasonable expectation of eliminating
ocular toxicity using a 6 mg/kg AIBW dose; indeed, the
claims are silent as to any ocular toxicity problem. Instead,
the inquiry merely required the district court to determine
whether the evidence established that a person of ordinary
skill in the art would have had a reasonable expectation
that dosing a human at 6 mg/kg AIBW would have been
effective in treating ovarian and peritoneal cancers, as
claimed. See Teva Pharms. USA, Inc. v. Corcept Therapeu-
tics, Inc., 18 F.4th 1377, 1381 (Fed. Cir. 2021) (“The rea-
sonable-expectation-of-success analysis must be tied to the
scope of the claimed invention.”).
Here, as noted above, the district court found that the
prior art teaches that a dose of 6 mg/kg TBW is suitable for
administering IMGN853 to humans for the treatment of
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IMMUNOGEN , INC . v. STEWART 13
ovarian and peritoneal cancers, therefore providing “pa-
rameters” for the claimed AIBW dosing. Decision,
653 F. Supp. 3d at 299. Because those parameters “pro-
vided ‘direction as to which of many possible choices is
likely to be successful,’” the district court found that a per-
son of ordinary skill in the art would have had a reasonable
expectation of success. Id. (quoting In re Cyclobenzaprine,
676 F.3d 1063, 1071 (Fed. Cir. 2012)). That was not clearly
erroneous. What is more, given the fact that the AIBW
dosing would be the same as the TBW dosing for a patient
at his or her IBW, and the fact that Lutz ’282 expressly
teaches “method[s] to overcome ocular toxicity of DM4-
containing antibody drug conjugates at a range of dosages,”
Lutz ’282, ¶ 272, including 6 mg/kg TBW, there is no need
to further establish a reasonable expectation of success in
this case. Lutz ’282 clearly discloses this limitation and
provides that it would have been reasonable to expect suc-
cess in dosing IMGN853 at 6 mg/kg AIBW, at least for a
patient at his or her IBW. See Hewlett-Packard Co. v. Mus-
tek Sys., Inc., 340 F.3d 1314, 1326 (Fed. Cir. 2003) (“[A]
prior art product that sometimes, but not always, embodies
a claimed method nonetheless teaches that aspect of the
invention.”).
We therefore conclude that the district court did not
clearly or legally err in holding that the claims of the ’809
application would have been obvious. The claims are there-
fore unpatentable.
CONCLUSION
We have considered ImmunoGen’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, the district court’s judgment denying ImmunoGen’s
claim for entitlement to a patent is affirmed.
AFFIRMED
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