When it comes to appealing a Patent Trial and Appeal Board (PTAB) decision, the Federal Circuit has limited the types of decisions that can be appealed. While a patent owner of a patent invalidated at the PTAB has standing to appeal to the Federal Circuit, there are still uncertainties surrounding petitioners who want to appeal PTAB decisions, but have not been sued for infringement. In a recent ruling, the Federal Circuit said that a challenger must demonstrate that it is engaged or will engage in activities that “would give rise to a possible infringement suit.” Law360 contacted Finnegan partner Dan Cooley for this thoughts on this issue, and Dan indicated that it is not something that will go away soon. Dan said, “In the AIA context, parties are still litigating this and exploring what are the boundaries of standing.”
