Judge Richard Taranto of the U.S. Court of Appeals for the Federal Circuit, during U.S. Circuit Judge for the District of Columbia Circuit Sri Srinivasan's official Investiture ceremony. Sept.r 26, 2013. Photo: Diego M. Radzinschi/NLJ

The odds of companies such as RPX Corp. and Askeladden LLC ever having standing to appeal Patent Trial and Appeal Board decisions just got longer.

It's even becoming a challenge for industry competitors, if they haven't sued each other.

The solicitor general's office on Thursday sided with patent owners who argue that, although Congress gave anyone the right to petition for review of patent validity, only those who can demonstrate Article III injury have standing to appeal in court.

The SG's amicus brief makes it less likely—though certainly not impossible—that the Supreme Court will hear defensive patent aggregator RPX's challenge to the Federal Circuit's refusal to hear its appeal in RPX Corp. v. ChanBond.

The Federal Circuit, meanwhile, continues to tighten up standing, ruling Monday that being a competitor in the same industry does not necessarily confer constitutional standing. AVX Corp.'s fear that Presidio Components Inc. might have a reasonable basis for asserting its patent “does not mean that there is any reasonable basis right now,” Judge Richard Taranto wrote for a unanimous panel.

The America Invents Act, the 2011 statute that reconstituted the PTAB and its role in post-grant patent reviews, states that “a party dissatisfied with a final written decision” of the PTAB may appeal it.

But the Federal Circuit ruled in 2014 that Congress didn't have the power to confer Article III standing, which requires a concrete injury. That's left member-supported groups like RPX or Unified Patents with no recourse after a loss at the PTAB.

RPX argued to the Federal Circuit that its loss to ChanBond LLC at the PTAB was its first in 17 petitions for inter partes review that went to final written decision.

Backed by Ravicher Law Firm and Klarquist Sparkman, RPX argued to the Supreme Court last fall that its reputation has suffered injury and it's been further harmed by the statutory estoppel that precludes it from challenging the patent again at the PTAB.

After banking trade group Askeladden and the New York Intellectual Property Law Association contributed amicus support, the Supreme Court called for the solicitor general's views.

The SG said Thursday that the Federal Circuit has it right.

Even when Congress has unambiguously authorized a particular class of plaintiffs to seek judicial relief, “Article III standing requires a concrete injury,” states the SG's amicus. The Supreme Court should construe “any party dissatisfied” may appeal as “any party aggrieved by” or “injured by” to avoid constitutional problems, the SG argues.

RPX got dinged by the Federal Circuit last year over allegations—still being litigated—that it did the bidding of one of its members at the PTAB. Before the Supreme Court it has emphasized that it is “the sole real party-in-interest in this proceeding” and hasn't communicated with any client about the preparation or filing of its ChanBond case.

But that's cut against standing. “For all that appears in the record,” the SG brief states, “petitioner is a stranger to the [ChanBond] patent and the invention it claims. Petitioner therefore concedes that it cannot show 'a patent-inflicted injury in fact.'”

George Washington University law professor Dmitry Karshtedt said RPX appears to have a tough road ahead.

“Perhaps RPX will shift gears in the supplemental brief, but without a claim of associational standing, it may have a tough time undermining the CAFC's (and now SG's) conclusion,” he said.

Even competitors in the same industry are facing similar challenges.

AVX describes itself as an international supplier of “a wide range of capacitors which are used all across the electronics industries.” Presidio is a direct competitor; the two have been involved in four lawsuits in the last decade.

AVX tried to invalidate Presidio patent claims at the PTAB but failed. If that ruling stands, Presidio will essentially be handed a limited monopoly in part of their market. The Federal Circuit has presumed injury when a federal agency action benefits one competitor over another, AVX's Foley & Lardner attorneys argued.

Taranto reasoned in AVX v. Presidio Components that the competitive harm theory requires a more direct effect on competition, such as by opening a market to new competitors. DuPont recently met that standard in a PTAB case, where it had opened a plant that was ready to manufacture products that arguably infringed a competitor's patent.

But “AVX has not pointed to a capacitor in any stage of development that might implicate the upheld claims of [Presidio's] patent,” Taranto wrote. “We conclude that AVX has identified no harm to it, competitive or otherwise, resulting from the Board's decision.”

Gregory Ahrens of Wood Herron & Evans had the winning argument for Presidio Components.

But there was a silver lining for AVX, and maybe for RPX too. Without a final judgment on appeal, petitioners may not be precluded from re-litigating their arguments at the PTAB or in district court, Taranto suggested.

Judges Pauline Newman and Kathleen O'Malley concurred in the opinion.