To seek relief in Federal Court, a plaintiff must demonstrate a personal, legally protectable interest in the outcome of the dispute for which relief is being sought, i.e., must demonstrate standing. The legally protectable interest may be under threat because of a government conduct. In patent disputes, the plaintiff may be an inter partes review (IPR) petitioner who has challenged a patent and is dissatisfied with the final written decision of the Patent Trial and Appeal Board (PTAB) regarding upholding of patent claims by the PTAB. Here, the decision upholding the claims would be the government conduct complained of. The dissatisfied petitioner may appeal to the Federal Circuit and, to prove standing, allege that it is injured because the decision upholding the claims reduces its ability to compete with the patent owner. If the petitioner has no current interest in practicing the claims, would it have standing? No, it would not, according to the Federal Circuit in Avx Corporation v. Presidio Components, Inc. 2018-1106 (Fed. Cir. May 13, 2019) (“Avx Corp.”), where this scenario played out. The court explained that although “competitor standing” can be found to challenge government actions in certain situations, this was not one of them, as the petitioner was unable to demonstrate any present or nonspeculative interest in engaging in conduct even arguably covered by the claims at issue. Avx Corp. at 9.
- Perryman PTAB Study for Unified Patents Leaves Out Half of the Story
- Patents are from Mars, Trade Secrets are From Venus
- The Rise of Australia’s Small Boutique Patent and Trademark Firms
- Tech Companies Should Strongly Consider Monetizing Their Patent Portfolios During the Economic Downturn
- (Not) Copyright Infringement: Is dbrand Infringing Nintendo’s IP?
- The Re-Written American Axle Opinion Does Not Bring Peace of Mind for Section 101 Stakeholders
- Federal Circuit Clarifies That Standard-Essentiality is A Question for the Factfinder
- Other Barks & Bites for Friday, August 7: USPTO Increases Fees for Patent Filings and AIA Trials, State AGs Ask HHS to March-In on Remdesivir, CAFC Denies American Axle Rehearing
- No, You Can’t March in On Remdesivir
- Google v. Oracle Perspective: Google’s Android ‘Cheat Code’ was to Copy Oracle’s Code