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Third Party Standing at the Federal Circuit: A Patent Challenge Disparity


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Stephanie Goldberg is a law student at the Georgetown University Law Center in Washington, D.C. and will graduate with her J.D. in May 2019. She holds a Bachelor of Science in Engineering in Electrical Engineering from Princeton University. 

Recommended Citation

Stephanie Goldberg, Note, Third Party Standing at the Federal Circuit: A Patent Challenge Disparity, Harv. J.L. & Tech. Dig. (2019), 


Article III of the United States Constitution and its derivative doctrinal requirements define the scope of authority for the federal judiciary. This Note explores the confines of the standing doctrine and Article III judicial power as exercised in patent cases, particularly in appeals at the Court of Appeals for the Federal Circuit ("Federal Circuit"), an Article III appellate tribunal, that originate from the Patent Trial and Appeal Board ("PTAB"), an Article I administrative tribunal. More specifically, this Note focuses on appeals from those PTAB petitioners classified as "third parties." These include parties that are neither competitors in the same industry nor potential infringers, but rather academics, industry alliances, public-interest groups, or other related non-practicing entities.

Article III standing demands a showing of injury in fact through a concrete and particularized harm—a prerequisite for jurisdiction that third parties can rarely show. And because third parties cannot establish injury in fact, they lack the requisite standing under Article III to appeal from PTAB procedures. A lack of appellate standing, however, could significantly limit the role of third parties in these PTAB challenges, leading to potentially unforeseen consequences, including the issuance and enforcement of more bad patents and appellate right imbalances...continue...