Federal Circuit holds that third parties can defend appeals

In a first, the Federal Circuit in Personal Audio LLC v. Electronic Frontier Foundation, No. 16-1123, slip op. (Fed. Cir. Aug. 7, 2017) has ruled that third-party appellees do not need Article III standing to defend appeals from the Patent Trial & Appeal Board (PTAB).  The Court concluded that only the party invoking the appeal, appellant Personal Audio, required standing, which ended the inquiry.  Thus, appellee Electronic Frontier Foundation (EFF), the defending party, did not.  The court also affirmed the PTAB’s decision to invalidate Personal Audio, LLC’s podcasting patent.  The decision means that parties like Unified Patents that have prevailed at the PTAB need not establish separate Article III standing to defend an appeal. 


In the case (IPR2014-00070), the EFF, an independent third-party public interest group, sought inter partes review (IPR) of a patent owned by NPE, Personal Audio, which sent numerous demand letters and filed more than a dozen suits against small podcasters.  Personal Audio’s patent was found unpatentable by the PTAB, after which they appealed to the Federal Circuit, requesting reversal.  The Federal Circuit, unprompted, asked the parties for briefing on EFF’s standing to defend the appeal.  Unified Patents (joined by Askeladden LLC) submitted an amicus curiae brief

The decision and links to other articles about the decision are below.