Generally, courts have “an obligation to assure [themselves] of litigants’ standing under Article III . . . including when a party appeals from a final agency action.” In order to bring a case in federal court, parties must meet the three elements for standing: 1) the [appellant] suffered an injury in fact, 2) that is fairly traceable to the challenged conduct of the [appellee] and 3) that is likely to be redressed by a favorable judicial decision. Specifically, the first element, injury in fact, requires an appellant to have an injury that actually exists or will imminently cause harm.
While Article III standing is not necessary to appear before an administrative agency such as the Patent Trial and Appeal Board (“PTAB”) under 35 U.S.C. § 6(a), appellants must have an injury in fact when seeking review of an agency’s final action in federal court.
Download a reprint of the full article below. Originally Published in the ISBA IP Newsletter, June 2017, Vol 56 No. 5.