As Eminem once said, “You only get one shot, do not miss your chance to blow / This opportunity comes once in a lifetime.” On January 17, 2018, the Federal Circuit similarly told RPX in RPX Corp. v. Chanbond (available here) that, in an IPR, it only gets one shot—i.e., if it loses in an IPR, it cannot appeal the adverse decision to the Federal Circuit because it lacked Article III standing.
In the case, RPX filed a petition for an inter partes review of Chanbond’s patent. In response, the PTAB found that RPX did not show that the patent was unpatentable. RPX appealed the PTAB’s decision to the Federal Circuit. Chanbond moved to dismiss the appeal for lack of standing.
Although Chanbond had asserted the patent in litigation, it had not sued or accused RPX of infringement. RPX, however, argued that, unlike its primary competitors Unified Patents and Askeladden, RPX “seeks to distinguish itself by filing only ‘high quality IPR challenges[.]’” (Booyah).
RPX argued that it suffered three types of injury sufficient to establish standing: (i) injury to its statutory rights, (ii) injury to its standing relative to competitors, and (iii) injury to its reputation of successfully challenging wrongfully issued patent claims. The Federal Circuit disagreed.
Because RPX was not engaged in any potentially infringing activity, its argument that the PTAB’s decision injured RPX by impeding its “right to file multiple IPR petitions on the same patent claims” failed.
Competitor standing didn’t apply here, because the evidence submitted did not demonstrate “that the Board’s determination increased or aids the competition in the market of the non-defendant IPR petitioners.”
Finally, RPX’s appellate submission did not “demonstrate a concrete and particularized reputational injury.” The evidence submitted “indicates that customers consider a variety of items when choosing a non-defendant IPR filing entity.”
Thereafter, RPX filed a petition for certiorari with the United States Supreme Court. On October 1, 2018, the Supreme Court invited the Solicitor General to file a brief expressing the view of the United States. On May 9, 2019, the United States filed its brief (available here), arguing that the Supreme Court should not hear the case as the Federal Circuit correctly decided that RPX lacked standing. The United States’ brief likely spells the end of the line for RPX, but there’s always the chance that the Supreme Court grants cert. Time will tell.