Standing to Appeal at the Federal Circuit: Appellants, Appellees, and Intervenors

Abstract

The America Invents Act of 2011 created three administrative patent review regimes that have flooded the rechristened Patent Trial and Appeal Board with almost 7,000 new matters in just under five years. The flood of matters-primarily, inter partes reviews (IPRs)-has led to more than 1,000 appeals to the U.S. Court of Appeals for Federal Circuit from administrative proceedings, eclipsing any other forum of origin. With the flood of administrative appeals, questions of first instance on appellate standing have arisen, resulting in a handful of important panel decisions.

While the other federal circuit courts have largely adopted legal tests, standards, and local procedural rules for addressing appellant, appellee, and even intervenor and amici standing, the Federal Circuit has only recently begun to address it. We review cases from the Supreme Court, the other circuits, and recent Federal Circuit panel decisions deciding issues in the first instance. We conclude that two schools of thought dominate standing on appeal, that one is the more sensible and appropriate approach in line with Supreme Court precedent, and that the Federal Circuit has already signaled it will-as it should-adopt that approach.

Keywords: Standing, Federal Circuit, Patents, Appellant, Appellee, Intervenor, Justicability, on Appeal, AIA, IPR, Agency Appeal, Agency, Administrative Law