Standing to Appeal

Photo of John P. Isacson
John P. Isacson

General Electric v. United Technologies Corp.

General Electric petitioned for an IPR against a United Technologies patent relating to gas turbine engines. General Electric was unsuccessful against certain claims, and sought to appeal. While there is a statutory right to appeal, the Federal Circuit dismissed General Electric’s appeal for lack of Article III standing. See Gen. Elec. Co . v. United Techs. Corp., 928 F.3d 1349 (Fed. Cir. 2019).

On February 12, 2020, General Electric petitioned for a writ of certiorari at the U.S. Supreme Court. The question presented is as follows:

Whether competitive harm alone suffices to confer Article III standing to appeal an IPR determination, or whether an appellant must also show concrete plans for future activity that creates a substantial risk of a future patent infringement action.

In the petition, General Electric repeats the view of Circuit Judge Todd Hughes that the Federal Circuit has create a patent-specific standing requirement that resurrects the old ‘reasonable apprehension of imminent suit’ test, which was overruled by the Supreme Court in 2007. General Electric further argues that a showing of ‘competitive harm’ has been found by other Circuit Court of Appeals as sufficient to confer Article III standing. In contrast, a losing patent owner always has Article III standing to appeal.

A relaxation of the Article III standing requirement would place the courts in line with the statutory right to appeal granted by Congress. In the absence of such a relaxation, there remains the question of whether estoppel can apply in situations where the petitioner cannot appeal, and thus is denied their day in court. A more detailed discussion of this issue, as well as the Federal Circuit law on Article III standing, can be found in IPR Estoppel: The Present and the Future.