Exclusivity "for Now" Insufficient for Standing
In Bicon, Inc, et al. v. The Straumann Company, et al. (Fed. Cir.; March 20, 2006) Bicon unsuccessfully argued that it was as a nonexclusive licensee of the ’731 patent with standing to sue for infringement of the patent. According to the opinion by Circuit Judge Bryson,
The only evidence Bicon cites in support of its contention that its license
was exclusive is the testimony of its president, Dr. Vincent Morgan. Dr. Morgan
testified that Bicon’s right to practice the patent was "exclusive at the
moment," but he promptly explained that Bicon’s right to practice the patent was
"exclusive" only in the sense that Bicon was the only licensee of the Diro
patent at the time ("[I]t’s exclusive because Bicon is the only one doing it
right now."). He added that he was aware of nothing that would prevent Diro
"from licensing [the patent] to someone else under appropriate circumstances."
We conclude that Bicon failed to proffer any evidence that Bicon was an
exclusive licensee with the right to exclude other prospective licensees and in
that capacity had standing to bring suit for infringement of the ’731 patent. We
therefore uphold the district court’s ruling on the standing issue.