As we have
previously discussed, some petitioners for IPR are not
able to appeal an adverse decision by the PTAB because they lack
constitutional standing. Though Article III standing is not
required to file an IPR petition, because it does not apply to
administrative proceedings, standing is required to bring a case in
Federal court—including an appeal to the Federal Circuit.
Several recent decisions have further clarified this standing
requirement and give good reason to continue to follow the
issue.
Petitioners that have not suffered any "injury" from
the patent (e.g., harm to their business) may not be able to appeal
an adverse IPR decision. The Federal Circuit's decision last
year in Phigenix, Inc. v. ImmunoGen,
Inc. first explained this. There, the
Court dismissed the appeal because the petitioner had failed to
establish the requisite injury. Notably, the Court rejected the
argument that the estoppel effect of an adverse IPR decision was
sufficient to
