November/December 2021
IP Litigator
By Gracie K. Mills; J. Derek McCorquindale; Daniel C. Cooley
As Justice Breyer obliquely observed in Cuozzo Speed Technologies, LLC v. Lee, a petitioner in an inter partes review (IPR) unsatisfied with a decision by the U.S. Patent Trial and Appeal Board (PTAB) may “lack constitutional standing” to appeal that decision to the Federal Circuit. This is because while “Article III standing is not necessarily a requirement to appear before an administrative agency” like the PTAB, Article III standing is required for an appellant to the Federal Circuit. In Phigenix, Inc. v. ImmunoGen, Inc., the Federal Circuit articulated for the first time “the legal standard for demonstrating standing in an appeal from a final agency action,” such as a Final Written Decision (FWD) by the PTAB. This article explores that standard and its subsequent application by the Federal Circuit in appeals by IPR petitioners.
Read "Injury in Fact: Establishing IPR Petitioner Standing on Appeal"
United States Court of Appeals for the Federal Circuit (CAFC), Final Written Decision, Patent Trial and Appeal Board (PTAB)
Reprinted with permission from the IP Litigator, published by Wolters Kluwer. This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. This article is only the opinion of the authors and is not attributable to Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, or the firm’s clients.
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