Standing Against Bad Patents

34 Pages Posted: 4 Feb 2017 Last revised: 10 Mar 2017

See all articles by Sapna Kumar

Sapna Kumar

University of Houston Law Center

Date Written: November 18, 2016


Direct competitors possess the ability to challenge bad patents that hinder their ability to compete. However, numerous factors — including the cost of bringing such challenges and the fear of retaliation from patent holders — cause bad patents to remain unchallenged. In theory, members of the public who are harmed by the patents can bridge this gap by filing suit in federal court under the Administrative Procedure Act or the Declaratory Judgment Act. But in practice, the Federal Circuit has aggressively blocked such challenges using the administrative law doctrine of standing. The America Invents Act now provides the public with a robust mechanism for challenging bad patents in the Patent Trial and Appeals Board (PTAB). However, obstacles remain, because public interest groups cannot appeal adverse PTAB decisions to the Federal Circuit if they cannot establish actual injury. This Article discusses the important role that the public plays in the patent system by challenging patents that direct competitors cannot or will not challenge. It contends that the Federal Circuit has distorted the Supreme Court’s standing jurisprudence by making it significantly harder for third parties to establish that they are within the zone of interests of a statute. It further maintains that constitutional standing limits any challenges from public advocacy groups that have not experienced any direct harm. Finally, this Article makes suggestions to the PTO and Congress to facilitate patent challenges from members of the public.

Keywords: standing, APA, PTAB

Suggested Citation

Kumar, Sapna, Standing Against Bad Patents (November 18, 2016). Berkeley Technology Law Journal, Forthcoming, U of Houston Law Center No. 2017-A-6, Available at SSRN:

Sapna Kumar (Contact Author)

University of Houston Law Center ( email )

United States


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