In dismissing an appeal from a Patent Trial and Appeal Board (PTAB) decision, the US Court of Appeals for the Federal Circuit explained that the non-defendant inter partes review (IPR) petitioner did not have Article III standing to appeal because the petitioner was not accused of infringement. RPX Corporation v. ChanBond LLC, Case No. 17-2346 (Fed. Cir., Jan 17, 2018) (Linn, J) (non-precedential).
RPX, a San Francisco-based infringement defense and patent aggregation member organization, challenged the patentability of a patent owned by ChanBond via an IPR proceeding. Under its “Patent Quality Initiative,” RPX regularly challenges “weak” patents with a relatively high success rate. Although ChanBond had asserted the patent in federal court against other entities, ChanBond did not accuse RPX of infringement. In its final written decision, the PTAB determined that RPX did not show the claims of the patent to be unpatentable. After RPX appealed, ChanBond filed a motion to dismiss, arguing that RPX lacked appellate standing because ChanBond had not accused RPX of infringement.
RPX argued that it had suffered three types of injury sufficient to establish appellate standing:
- Injury to RPX’s statutory right to file multiple IPR petitions on the same patent claims
- Injury to RPX’s market standing relative to competitors
- Injury to RPX’s reputation within the industry of successfully challenging issued patents
The Federal Circuit rejected all three of these arguments. First, with regard to the injury in fact requirement, the Federal Circuit cited its 2014 decision in Consumer Watchdog v. Wisconsin Alumni Research Foundation (IP Update, Vol. 17, No. 7) and its 2017 decision in Phigenix, Inc. v. Immunogen, Inc. (IP Update, Vol. 20, No. 2). The Court concluded that although RPX was entitled to file multiple petitions on the same patent, that was not sufficient to establish appellate standing “when the appellant is not engaged in any activity that would give rise to an infringement suit.” As the Court noted, RPX “was permitted to request [review] and participate once the PTO granted its request. That is all the statute requires.”
Next, the Court addressed RPX’s competition-based injury argument. The Court concluded that although competition-based injury is sufficient to establish appellate standing under the doctrine of competitor standing, RPX did not submit sufficient evidence to demonstrate that the PTAB’s decision “increased or [aided] the competition in the market of the non-defendant IPR petitioners.” Finally, regarding RPX’s injury to industry reputation argument, the Court determined that the evidence submitted by RPX on appeal did not sufficiently “demonstrate a concrete and particularized reputational injury.” Thus, because RPX could not demonstrate that it had suffered an injury in fact, the Court held that RPX lacked Article III standing to appeal the PTAB’s decision affirming the patentability of ChanBond’s patented claims.