May 01, 2018 Landslide

Brave New Law: Appellate Standing at the Federal Circuit

By Matthew Dowd and Jonathan Stroud

©2018. Published in Landslide, Vol. 10, No. 5, May/June 2018, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

All opinions and errors are the authors’ own. This article borrows generously from a much longer article forthcoming in the Catholic University Law Review, “Standing to Appeal at the Federal Circuit: Appellants, Appellees, and Intervenors.”

The America Invents Act (AIA) fostered three administrative post-grant patent review regimes that subsequently flooded the rechristened Patent Trial and Appeal Board (PTAB) with almost 7,000 petitions in just under five years. That deluge—primarily, of inter partes reviews (IPRs)—has led to more than 1,000 new appeals to the U.S. Court of Appeals for Federal Circuit, eclipsing any other forum of origin. It thus is not surprising that the question of appellate standing from administrative proceedings has finally come to the Federal Circuit en masse, resulting in a handful of groundbreaking decisions.

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