"The Federal Circuit's standing requirements for appeals from PTAB proceedings create a two-tier system for patent challengers, where anyone can file a petition without showing Article III standing, but must demonstrate standing upon seeking appellate review."
"When a patent owner amends its claims during post-grant review, a petitioner's standing evidence must keep pace with those amendments, as standing built around the original claims won't suffice for appeals challenging substitute claims."
"The standing requirement is derived from the Constitution, meaning Congress cannot override it via statute, which complicates the appeal process for petitioners who lose at the PTAB."
"The problem for post-grant review is exacerbated by the short 9-month window for filing petitions after a patent issues, as patent owners typically do not assert their patents that quickly."
The Federal Circuit's standing requirements for appeals from PTAB proceedings necessitate that petitioners demonstrate concrete injury linked to challenged patents. A recent decision emphasizes that when patent owners amend claims during post-grant review, petitioners must update their standing evidence accordingly. Initially, standing is assessed at the appeal's start, requiring proof of injury that is traceable to the patentee and redressable by claim cancellation. The short filing window for post-grant review complicates matters, as patent owners typically do not assert patents immediately after issuance.
Read at Patently-O
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