Imagine you own a business and are concerned that a new product you are developing will infringe a competitor’s patent. The competitor has not explicitly threatened to bring a suit if you launch the product, but you are concerned enough to delay the launch. You research your options and hear about an administrative procedure called inter partes review (IPR), which allows anyone to challenge the validity of a patent based on prior art to the patent.
You research prior art and decide to file an IPR. You hire an attorney and pay the Patent Trial and Appeals Board (PTAB) substantial fees—over $30,000—to file the petition and have proceedings instituted, which take a year to finish. Over the course of that year, your attorney takes and defends expert depositions and attends a hearing with three PTAB judges. Unfortunately, after the hearing the PTAB issues a final written decision holding the claims are valid over the prior art you cited. Convinced the PTAB got it wrong (and out $200,000 in fees and costs), you decide to appeal to the United States Court of Appeals for the Federal Circuit, as the relevant statute provides that “a party dissatisfied with the final written decision . . . may appeal the decision.” 35 U.S.C. § 319.
On appeal, the Federal Circuit does something that seems surprising: it decides it cannot hear the appeal. Despite the time and effort put into the IPR, the lost opportunity cost from the delayed launch of your product, and the fact that the statute states that a “dissatisfied” party may appeal, the Federal Circuit finds you lack an “injury-in-fact” sufficient to have standing to appeal.
However, the Federal Circuit has actually issued a number of decisions finding a petitioner lacks standing to appeal their own IPR, even though the patent owner would have standing to appeal the same final written decision in the same IPR. Two of those decisions have petitions for certiorari pending before the Supreme Court.
This article explores issues regarding standing in this context, and suggests that the statutorily-defined injury in 35 U.S.C. § 319 could sufficiently confer standing on a petitioner appealing an IPR. The article begins with a background of IPRs and standing requirements, followed by a review of relevant Federal Circuit decisions, before discussing why the statute providing the right to appeal could be found to properly identify and elevate an injury that is sufficient to give rise to standing.
II. Background of IPRs and Standing Requirements
Any person who is not the owner of a patent may file a petition for IPR of an issued patent. 35 U.S.C. § 311(a). The PTAB may institute an IPR proceeding if the petition, when considered in light of the patent owner’s response, demonstrates “a reasonable likelihood that the petitioner would prevail” with respect to at least one challenged claim. Id. § 314(a). If IPR is instituted, a mini-trial occurs before the PTAB, and the PTAB issues a final written decision with respect to the patentability of the challenged claims. Id. § 318(a). Thereafter, “[a] party dissatisfied with the final written decision of the Patent Trial and Appeal Board under section 318 may appeal the decision pursuant to sections 141 through 144. Any party to the inter partes review shall have the right to be a party to the appeal.” 35 U.S.C. § 319. Section 141, referenced in Section 319, specifies that the Federal Circuit has exclusive jurisdiction over such appeals: “a party to an inter partes review or a post-grant review who is dissatisfied with the final written decision of the Patent Trial and Appeal Board under section 318(a) or 328(a) (as the case may be) may appeal the Board’s decision only to the United States Court of Appeals for the Federal Circuit.” 35 U.S.C. § 141(c). Congress allowed parties to appeal directly to the Federal Circuit, as opposed to first filing administrative appeal (which would not require Article III standing, discussed below), in order to speed up the resolution of IPRs and patent disputes, consistent with the fundamental purpose of the procedure. 157 CONG. REC. S1376 (daily ed. Mar. 8, 2011) (statement of Sen. Kyl) (“The bill also eliminates intermediate administrative appeals of inter partes proceedings to the BPAI, instead allowing parties to only appeal directly to the Federal Circuit. By reducing two levels of appeal to just one, this change will substantially accelerate the resolution of inter partes cases.”); see also 157 CONG. REC. S1364 (daily ed. Mar. 8, 2011) (noting “fundamental purpose” of IPRs was to “provide a cost-efficient alternative to litigation”) (statement of Sen. Schumer).
Although “inter partes review includes some of the features of adversarial litigation, it does not make any binding determination regarding ‘the liability of [petitioner] to [patent owner] under the law as defined.'" Oil States Energy Servs., LLC v. Greene’s Energy Group, LLC, 138 S.Ct. 1365, 1378 (2018). Instead, “[i]t remains a matter involving public rights, one between the government and others, which from [its] nature do[es] not require judicial determination.” Id. (internal quotation marks omitted).
Because an IPR is an administrative proceeding, there is no requirement that a petitioner meet the minimum constitutional standing requirements (“Article III standing”) of federal courts. As the Supreme Court has noted, “[p]arties that initiate [IPRs] need not have a concrete stake in the outcome; indeed, they may lack constitutional standing.” Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2143–44 (2016). Issues of standing are particularly acute in the IPR context as it involves public rights: “[t]he injury-in-fact requirement” of standing (discussed below) “often stymies a private plaintiff’s attempt to vindicate the infringement of public rights,” as “[g]enerally, only the government had the authority to vindicate a harm borne by the public at large, such as the violation of the criminal laws.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1551 (2016) (Thomas, J., concurring) (“The Court has said time and again that, when a plaintiff seeks to vindicate a public right, the plaintiff must allege that he has suffered a ‘concrete’ injury particular to himself . . . .”).
Although Article III standing is not required to file an IPR petition, it is required when appealing an IPR decision to the Federal Circuit, an Article III court. The Supreme Court has set forth three requirements that must be met for a party to have such standing: first, “the [party] must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations and internal quotation marks omitted). Second, “[t]here must be a causal connection between the injury and the conduct complained of—the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . the result [of] the independent action of some third party not before the court.” Id. (internal quotation marks omitted). Third, the injury “must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 561 (internal quotation marks omitted).
Laws enacted by Congress may influence whether a party has Article III standing, even though Article III standing is a constitutional requirement. For example, “[t]he person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.” Lujan, 504 U.S. at 572 n.7. Further, “Congress may elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.” Spokeo, 136 S.Ct. at 1549 (internal quotation marks omitted); see also Lujan, 504 U.S. at 578 (Kennedy, J., concurring in part and concurring in judgment) (“Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.”). At the same time, however, “Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.” Id. at 1547–48. More particularly, “Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Id. at 1549. Instead, “Article III standing requires a concrete injury even in the context of a statutory violation.” Id. Thus, even though Congress may “elevate” certain injuries into those giving rise to standing, “a bare procedural violation” without any risk of real harm, is insufficient. Id.; see also Frank v. Gaos, 586 U.S. ___, 139 S.Ct. 1041, 1046 (2019) (“Our decision in Spokeo abrogated the ruling in Edwards [v. First American Corp., 610 F.3d 514 (2010)] that the violation of a statutory right automatically satisfies the injury-in-fact requirement whenever a statute authorizes a person to sue to vindicate that right.”).
III. Federal Circuit Caselaw on Standing for IPR Appeals
The Federal Circuit has issued several decisions addressing Article III standing on appeal from an administrative proceeding challenging the validity of a patent.1
The Federal Circuit’s caselaw on this issue begins with a decision addressing standing to appeal an inter partes reexamination, the predecessor to inter partes review.2 In Consumer Watchdog v. Wisconsin Alumni Research Foundation, 753 F.3d 1258, 1262 (Fed. Cir. 2014), Consumer Watchdog—“a self-described ‘not-for-profit public charity dedicated to providing a voice for taxpayers and consumers in special interest-dominated public discourse, government and politics,’” id. at 1259—had sought to appeal the outcome of an inter partes reexamination it requested. The Federal Circuit focused on finding an injury specific to Consumer Watchdog, and began its analysis by pointing out the types of injuries Consumer Watchdog had not alleged:
Consumer Watchdog does not allege that it is engaged in any activity involving human embryonic stem cells that could form the basis for an infringement claim. It does not allege that it intends to engage in such activity. Nor does it allege that it is an actual or prospective licensee, or that it has any other connection to the ’913 patent or the claimed subject matter.
Id. at 1261. Instead, the Federal Circuit noted, “Consumer Watchdog relie[d] on the PTAB’s denial of Consumer Watchdog’s requested administrative action—namely, the [PTAB’s] refusal to cancel claims 1–4 of the ’913 patent.” Id.
According to the Federal Circuit, the PTAB’s denial of Consumer Watchdog’s reexamination request was “insufficient to confer standing” by itself, because “the [PTAB’s] disagreement with Consumer Watchdog did not invade any legal right conferred by the inter partes reexamination statute.” Id. at 1262. The Federal Circuit acknowledged that “the inter partes reexamination statute allows a third-party requester to appeal decisions favorable to patentability,” id., but held this insufficient to confer Article III standing: “the statutory grant of a procedural right does not eliminate the requirement that Consumer Watchdog have a particularized, concrete stake in the outcome of the reexamination.” Id. Implicitly, then, the Federal Circuit rejected the notion that an unfavorable decision in the proceeding itself could have given rise to such an injury.
The Federal Circuit also distinguished the denial of a request to find patent claims invalid in reexamination from the denial of a Freedom of Information Act (FOIA) request, holding that FOIA “created substantive legal rights—access to certain government records—the denial of which inflicts a concrete and particularized injury in fact,” whereas under the reexam statute “Consumer Watchdog was permitted to request reexamination and participate once the PTO granted its request.” Id.
Further, while the Federal Circuit noted that while Consumer Watchdog would now be statutorily estopped from challenging the validity of the patent if an infringement suit were later brought against it, this did not create sufficient injury to confer standing either, as “Consumer Watchdog is not engaged in any activity that would give rise to a possible infringement suit.” Id.3
Three years later, in Phigenix, Inc. v. Immunogen, Inc., the Federal Circuit reached a similar result with regard to an appeal of an inter partes review. The Federal Circuit noted that Phigenix “does not manufacture any products, but purportedly ‘has developed, and is developing, an extensive intellectual property portfolio.’” 845 F.3d 1168 at 1170 (Fed. Cir. 2017). As in Consumer Watchdog, the Federal Circuit began its analysis with what Phigenix was and was not alleging as injury:
Phigenix does not contend that it faces risk of infringing the ’856 patent, that it is an actual or prospective licensee of the patent, or that it otherwise plans to take any action that would implicate the patent . . . . Instead, Phigenix asserts that it has suffered an actual economic injury because the ’856 patent increases competition between itself and ImmunoGen . . . and “‘[i]ncreased competition represents a cognizable Article III injury.’”
Id. at 1173 (internal citations omitted).
The Federal Circuit held these allegations—which it found had underlying issues with evidentiary admissibility—were insufficient to establish an injury in fact. The Federal Circuit also addressed 35 U.S.C. § 141(c), which provides that a party “dissatisfied” with a final written decision may appeal it only to the Federal Circuit: “Phigenix cannot base its injury in fact upon a violation of § 141(c) because it has been permitted to file its appeal, and the exercise of its right to appeal does not necessarily establish that it possesses Article III standing.” Id. 1175. The Federal Circuit did not explicitly address whether being “dissatisfied” under 35 U.S.C. § 319 was a sufficient injury to confer standing. The Federal Circuit lastly addressed whether the estoppel provision of IPR created sufficient injury-in-fact, and, following, Consumer Watchdog, found that Phigenix was “not engaged in any activity that would give rise to a possible infringement suit.” Id. at 1176.
The next year, in RPX Corp. v. Chanbond LLC, Appeal No. 2017-2346, Order (Jan. 17, 2018) (nonprecedential), the Federal Circuit similarly held that because petitioner RPX had not been accused of patent infringement, it lacked standing to appeal an adverse final written decision on an IPR petition it had filed. The Federal Circuit noted that according to RPX, its “core business is in acquiring patent rights on the open market and in litigation to achieve peaceful resolution of patent disputes through rationally negotiated transactions.” Id. at 2. RPX argued it suffered three types of injury by the PTAB’s decision: “injury to its statutory rights [to compel cancellation of claims on unpatentable inventions]; injury to its standing relative to competitors; and injury to its reputation of successfully challenging wrongfully issued patent claims.” The Federal Circuit quickly disposed of the first argument by relying on Consumer Watchdog and Phigenix. Id. at 4 (“As to a right to compel cancellation of claims on unpatentable inventions, this issue was settled in Consumer Watchdog . . . . the reasoning applies equally to the relevant statues governing IPR proceedings.”) (citing Phigenix). With regard to the other injuries RPX , the Federal Circuit held that “RPX has not demonstrated that the Board’s determination increased or aids the competition in the market of the non-defendant IPR petitioners” and “RPX’s documents submitted on appeal do not demonstrate a concrete and particularized reputational injury.” Id. at 5.
The Federal Circuit has also addressed these issues in JTEKT Corp. v. GKN Automotive Ltd., 898 F.3d 1217 (Fed. Cir. 2018). JTEKT sought to appeal an adverse final written decision on an IPR petition it filed. The Federal Circuit noted that in Phigenix, “we wrote that ‘[a]n appellant’s obligation to establish an injury in fact remains firm even though it need not ‘meet all the normal standards for redressability and immediacy’ when, as here, a statute provides that appellant with a right to appeal.” Id. at 1219–20. Having dispensed with the statute alone providing a basis to appeal, the Federal Circuit held that JTEKT had “not establish[ed] that its planned product would create a substantial risk of infringing claims 2 or 3 of GKN’s ’440 patent or likely lead to charges of infringement.” Id. at 1221. In other words, JTEKT had not done enough to show it might infringe GKN’s patent. The Federal Circuit also briefly rejected JTEKT’s argument that the IPR estoppel provision created an injury in fact, relying on its precedent in Phigenix. Id.
More recently, in Momenta Pharmaceuticals, Inc. v. Bristol-Meyers Squibb Company, the Federal Circuit denied standing to petitioner Momenta, which had withdrawn a product from the market for failing to pass clinical trials, but had not abandoned its intent to produce a counterpart product. 915 F.3d 764 (Fed. Cir. 2019). After reviewing applicable caselaw, the Federal Circuit stated:
Although Momenta had initially stressed that it had spent millions of dollars in its development of an Orencia® biosimilar, now upon Momenta’s termination of all potentially infringing activity, Momenta has not shown “an invasion of a legally protected interest” that is “actual or imminent, not conjectural or hypothetical.” On abandoning development of this product, Momenta has no legally protected interest in the validity of the ’239 Patent, and there is no “real need to exercise the power of judicial review.” 4
Id. at 768 (internal citation omitted). In other words, because “Momenta has now made clear that no concrete plans are afoot,” it lacked standing. Id. at 770. Whether “dissatisfaction” under Section 319 could alone give rise to standing was not explicitly addressed.
At the time of this writing, both the RPX and JTEKT decisions have petitions for certiorari pending before the Supreme Court.
IV. Congress Conferred Standing on IPR Petitioners to Appeal a Final Written Decision
Under the plain language of 35 U.S.C. § 319, Congress clearly intended to elevate the intangible harm associated with being “dissatisfied” with the outcome of a final written decision—and such "dissatisfaction" invariably derives from underlying harm—to one sufficient to confer Article III standing when appealing to the Federal Circuit. Although a close (and certainly controversial) question, this could reasonably be considered a proper basis for conferring standing.
Recall the three requirements for Article III standing: (1) injury in fact, (2) causal connection between injury and conduct complained of, and (3) redressable.
The first requirement is by far the most important to the question.5 Here, the injury in fact is being “dissatisfied” with the outcome of a final written decision in an IPR. This injury is “concrete and particularized,” Lujan, 504 U.S. at 560, as it is dissatisfaction with a particular final written decision. The injury is “actual or imminent, not conjectural or hypothetical,” as the final written decision has actually issued.
This is not dissimilar to other types of “intangible” injury that the Supreme Court has recognized Congress may elevate to one sufficient to confer standing. In Lujan, for example,the Supreme Court recognized that “injury to an individual’s personal interest in living in a racially integrated community” and “injury to a company’s interest in marketing its product free from competition” were proper ways of “elevating” intangible injuries to the status of legally cognizable injuries. See 504 U.S. at 577 (citing Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 208–12 (1972) and Hardin v. Kentucky Utilities Co., 390 U.S. 1, 6 (1968)). Dissatisfaction with the PTAB’s final written decision may have other injuries underlying it as well. For one, petitioners lose significant amounts of money on a failed IPR. The (non-refundable) fees to file a petition and proceed with an IPR after institution exceed $30,000. 37 C.F.R. § 42.15(a). When adding in fees for attorneys and expert witnesses, the median cost can by some estimates reach $250,000.6 The dissatisfaction could also take the form of not being able to launch a product free from the threat of a competitor’s patent. Cf. Hardin, 390 U.S. at 6. More broadly, the Supreme Court has recognized that a judgment in a proceeding can give rise to an injury sufficient to create Article III standing for an appeal, even if the party lacked Article III standing in the underlying proceeding. See ASARCO v. Kadish, 490 U.S. 605, 612, 624 (1989); see also Rochelle Cooper Dreyfuss, Giving the Federal Circuit a Run for Its Money: Challenging Patents in the PTAB, 91 Notre Dame L. Rev. 1, 295–96 (2015) (“A challenger who loses in the PTAB is in a very similar position to the parties that sought review in ASARCO.”).
The Federal Circuit has not explicitly addressed whether “dissatisfaction” under the statute is a sufficient injury. Instead, it has characterized the refusal to hear appeals provided by statute as violation of a “procedural” right (i.e., the right to appeal) and held a violation of that procedural right insufficient to confer standing. See Consumer Watchdog, 753 F.3d at 1262 (“A statutory grant of a procedural right, e.g., right to appeal, does not eliminate the requirements of Article III . . . . the statutory grant of a procedural right does not eliminate the requirement that Consumer Watchdog have a particularized, concrete stake in the outcome of the reexamination.”); Phigenix, 845 F.3d at 1175 (“Phigenix cannot base its injury in fact upon a violation of § 141(c) because it has been permitted to file its appeal, and the exercise of its right to appeal does not necessarily establish that it possesses Article III standing.”). The Federal Circuit’s analysis is intended to follow the Supreme Court’s guidance that “a bare procedural violation” by itself would be insufficient to confer Article III standing. Spokeo, 136 S.Ct. at 1549.
The Supreme Court, however, has confirmed that “the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact” if that procedural violation has at least a “risk of real harm” associated with it. Spokeo, 136 S.Ct. at 1549. The Federal Circuit does not appear to have addressed this issue explicitly, either. For example, in Phigenix the Federal Circuit recognizes this language from Spokeo. But it addresses the language in the same paragraph by stating only that: “Phigenix cannot base its injury in fact upon a violation of § 141(c) because it has been permitted to file its appeal, and the exercise of its right to appeal does not necessarily establish that it possesses Article III standing.” 845 F.3d at 1175.
Other Circuit Courts of Appeal have similarly acknowledged that violations of procedural rights under statute can give rise to standing when the violation presents a risk of substantive harm. See, e.g., Kamal v. J. Crew Group, Inc., 918 F.3d 102, 111 (3d Cir. 2019) (“[W]hen a procedural right protects a concrete interest, a violation of that right may create a sufficient ‘risk of real harm’ to the underlying interest to ‘satisfy the requirement of concreteness.’”) (quoting Spokeo); Sayles v. Advanced Recovery Systems, Inc., 865 F.3d 246, 250 (5th Cir. 2017) (“Here, ARS’s § 807(8) violation exposed Sayles to a real risk of financial harm caused by an inaccurate credit rating.”) (relying on same language in Spokeo); Demarais v. Gurstel Chargo, P.A., 869 F.3d 685, 691 (8th Cir. 2017) (noting “[i]t is undisputed that the letter Accretive Health sent to Church did not contain all of the FDCPA’s required disclosures” and relying on same language in Spokeo to find that no further “injury” was required to show standing).7
Further, if the “dissatisfaction” set forth in sections 141(c) and 319 did not give rise to standing, and some petitioners are not able to seek judicial review of a final written decision as a result, at least two issues arise.
First, it may call into question the constitutionality of IPRs. Not hearing an appeal from an IPR removes judicial review of the IPR. This in turn removes a potential underpinning of the Supreme Court’s holding that IPRs are constitutional. In upholding the constitutionality of IPRs in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, the Supreme Court noted that “because the Patent Act provides for judicial review by the Federal Circuit, see 35 U.S.C. § 319, we need not consider whether inter partes review would be constitutional without any sort of intervention by a court at any stage of the proceedings.” 138 S.Ct. at 1379 (internal quotation marks omitted). Preventing judicial review of a final written decision would therefore leave open the possibility that IPRs—or at least a subset of them—are unconstitutional.
Second, removing judicial review would be unfair. Currently, a patent owner always has a right to appeal an adverse final written decision, even if a petitioner does not. See Stephanie Goldberg, Third Party Standing at the Federal Circuit: A Patent Challenge Disparity, Harv. J.L. & Tech. (2019), available at https://jolt.law.harvard.edu/assets/digestImages/PDFs/Goldberg_2019-01.pdf. Parties in litigation can both appeal an adverse result; parties in an IPR should as well. In the event Article III courts continue to deny both parties their day in court, Congress should at least provide an administrative appeal mechanism as a matter of fundamental fairness.
Whether the business owner used in the example in this article could appeal his IPR undoubtedly presents a very close question, but one could reasonably read Supreme Court caselaw and 35 U.S.C. § 319 to allow it. For now, however, he is without recourse for the time and effort put into his IPR in addition to the lost opportunity cost from the delayed launch of his product.
 This article discusses only those decisions that addressed standing and found it did not exist.
Both procedures are similar for purposes of this article. With regard to appeal, under the then-applicable statute for inter partes reexam, “a third-party requester [of reexamination] . . . may appeal under the provisions of section 134, and may appeal under the provisions of sections 141 through 144, with respect to any final decision favorable to the patentability of any original or proposed amended or new claim of the patent . . . .” 35 U.S.C. § 315 (pre-AIA).
The Supreme Court denied certiorari in Consumer Watchdog.
Id. at 768 (internal citation omitted).
 The second and third prong are generally easier to meet where, as here, Congress has provided a right to appeal an administrative decision. See Massachusetts v. E.P.A., 549 U.S. 497, 517–18 (2007). The second prong is met as the injury (“dissatisfact[ion]” “with the final written decision,” 35 U.S.C. §§ 141(c), 319 is necessarily caused by the final written decision. The third prong is met as the Federal Circuit reversing the PTAB’s final written decision would redress the dissatisfaction with the decision.
 https://www.bna.com/cost-patent-infringement-n73014463011/ .
 In RPX, the Solicitor General took the position that RPX’s petition for certiorari should be denied. The Solicitor General argued in part that being “dissatisfied” cannot be sufficient because this “prerequisite would have no practical effect if every party that disagreed with the Board’s decision could invoke the Federal Circuit’s jurisdiction,” and because the Supreme Court has “rejected the premise * * * that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” RPX Corp. v. Chanbond LLC, No. 17-1696, Br. for the United States as Amicus Curiae at 17–18 (quoting Frank, 139 S.Ct. at 1045) (quoting Spokeo, 136 S.Ct. at 1549). The Supreme Court rejected this premise only with regard to whether alleging a "bare procedural violation” without more could give rise to standing. 136 S.Ct. at 1549. But the Supreme Court noted that “the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact. In other words, a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified.” Id. (emphasis in original). As discussed above, such is the case here.