Separate Article III Standing Not Necessary for PTAB Appellees

Article III Standing Only Necessary for Party Invoking Authority of Federal Courts

Last week, I analyzed the government's arguments supporting Article III standing for intervenors in Knowles Electronics v. Matal. In that case, the panel questioned whether the government had Article III standing to intervene in a case where the original appellee dropped out. As to the arguments presented by the government, I explained that I found the most compelling argument to be that the agency can piggyback off of the Article III standing of the appellant as the standing inquiry is properly directed at those who invoke the court's jurisdiction.

Yesterday, two of the three judges (Newman, Clevenger) on the Knowles panel agreed with the above "piggyback" argument in Personal Audio, LLC v. Electronic Frontier Foundation.

While Personal Audio did not address the specific intervenor scenario of Knowles, it did address standing of a party other than the Appellant.

The Appellee, Electronic Frontier Foundation (EFF) , is a non-profit organization that seeks to protect the public interest of consumers of digital technology.  EFF sought Inter Partes Review (IPR) of Personal Audio's (8,112,504) '504 patent after a well-publicized campaign in which the '504 patent was used to target podcasting programs around the country. EFF was successful in securing the cancellation of the challenged patent claims at the Patent Trial & Appeal Board (PTAB).  On appeal, the question of EFF's standing as appellee was raised by the panel, and additional briefing was ordered (including amicus filings).

In a few short paragraphs, the Court dispensed the EFF standing issue (here), concluding:

Here, the party invoking judicial review is Personal Audio; it is apparent that Personal Audio, on cancellation of its patent claims by the PTAB, has experienced an alteration of “tangible legal rights . . . that is sufficiently ‘distinct and palpable’ to confer standing under Article III.” Virginia v. Hicks, 539 U.S. 113, 121 (2003) (internal citations omitted). With Article III satisfied as to the appellant, EFF is not constitutionally excluded from appearing in court to defend the PTAB decision in its favor.

Personal Audio appears to have all but mooted the remaining briefing in Knowles on intervenor standing.

Scott A. McKeown is an author of the Patents Post Grant.