The U.S. Court of Appeals for the Federal Circuit hears more than 150 appeals a year from America Invents Act proceedings at the Patent Trial and Appeal Board.

The Supreme Court just made sure that number isn't going to grow even higher.

The high court turned away two petitions for certiorari Monday that sought to expand the grounds for appealing unfavorable outcomes in inter partes review, the administrative procedure for reviewing patent validity established eight years ago by the AIA.

The court denied cert in RPX v. ChanBond and JTEKT v. GKN Automotive on Monday. In each case the petitioner had the right under the AIA to bring an IPR, but the Federal Circuit concluded it did not have Article III standing to continue pursuing the matter on appeal.

The America Invents Act provides that any person may petition for IPR, and any party “dissatisified with the final written decision” of the PTAB may appeal to the Federal Circuit. But the appellate court has ruled repeatedly that concrete, particularized injury is necessary to move beyond the administrative forum of the PTAB and into an Article III courtroom.

“The Federal Circuit has made it clear they're not deciding these IPR appeals for fun, because they're being deluged with them,” said Michelle Armond, a partner for Armond Wilson in Irvine, California, who has been following the cases as a PTAB trials and appeals specialist. The court is applying “pretty strict criteria” on standing—though she notes that it applies to a fairly small subgroup of parties: certain PTAB petitioners who win a decision to institute proceedings but then lose the final written decision. A losing patent owner always has a concrete injury and can appeal.

The Federal Circuit ruled that RPX Corp. didn't have standing because it wasn't engaged in any potentially infringing activity. Rather, it's a defensive patent aggregator that was acting broadly on behalf the networking industry. The Supreme Court had asked the solicitor general's office for its views on the case, but the solicitor general agreed with patent owner ChanBond LLC that RPX didn't have standing.

Andrea Pacelli of New York's Mishcon de Reya was the winning counsel of record for ChanBond before the Supreme Court. Daniel Ravicher of Coral Gables, Florida's Ravicher Law Firm was counsel of record for RPX.

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JTEKT involved competitors in the automotive industry. JTEKT Corp. tried to invalidate a patent GKN automotive holds on drivetrain technology because it's developing a product carrying a “potential risk of infringement,” but that was still being tested and “evolving.” That wasn't enough to show particularized injury, the Federal Circuit ruled.

Linda Dupont Mettes of Southfield, Michigan's Brooks Kushman led the successful opposition for GKN at the Supreme Court. W. Todd Baker of Alexandria, Virginia's Oblon, McClelland, Maier & Neustadt was counsel of record for JTEKT.

Askeladden, a subsidiary of The Clearing House Payments Co. LLC that files IPR petitions on behalf of the financial services industry, supported both JTEKT and RPX as amicus curiae.

“The Federal Circuit has established its view on this subject, and consistently follows its prior erroneous line of cases,” Charles Macedo of New York's Amster Rothstein & Ebenstein wrote on behalf of Askeladden in JTEKT.

Despite Monday's orders, Armond said she wouldn't close the books on the issue quite yet. “I think this is a hot issue that could still percolate up to the Supreme Court,” she said, if the right vehicle comes along.

In the meantime, if you're a party in JTEKT's shoes, “you may want to wait until you have a product, if not on the market, then close to it” before bringing an IPR petition, she said.