Standing Requirements for Appealing PTAB Decisions: Recent Developments

Although a party need not have Article III standing to appear before the Patent Trial and Appeal Board (PTAB), it must establish standing when appealing an adverse PTAB decision to the Federal Circuit. Building on the reasoning in a line of cases following GE, JTEKT, and AVX, the Federal Circuit has further elaborated on the particular standing requirements a party must meet to maintain an appeal. For instance, recently in Pfizer, Argentum, and Grit Energy, the Court closely examined the evidence required to show injury based on economic harm or infringement risk, and stressed that the appellant must prove that standing exists at the outset of the appeal and at all later stages. In this article, Finnegan attorneys Mike Flibbert and Michelle Rice review the Federal Circuit’s analysis in recent standing cases, and provide practical considerations for parties seeking to establish, or refute, standing to appeal PTAB decisions.  Read the full article here.