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

QUESTION PRESENTED This Court and courts of appeals across the country have long held that government action that subjects parties to competitive harm, such as by increasing the burdens or costs of competition, satisfies Article III’s injury-in-fact requirement. In determining whether a petitioner in an inter partes review (IPR) proceeding has Article III standing to appeal a final written decision by the Patent and Trademark Office (PTO), however, the Federal Circuit has repeatedly held that such competitive harm does not constitute an injury-in-fact. Instead, the court has held that to establish standing, a petitioner who is not already the subject of a patent infringement claim concerning the challenged patent must show that it has “concrete plans for future activity that creates a substantial risk of future infringement.” App. 8a (citation omitted). As Judge Hughes recognized in this case, the Federal Circuit has thus erected a “patent-specific approach to the doctrine of competitor standing that is out of step with Supreme Court precedent.” Jd. at 9a (Hughes, J., concurring in the judgment). The question presented is: 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.