Us Inventor, Inc., National Small Business United v. United States Patent

United States Court of Appeals
for the Federal Circuit
______________________
US INVENTOR, INC., NATIONAL SMALL
BUSINESS UNITED,
Plaintiffs-Appellants
v.
UNITED STATES PATENT AND TRADEMARK
OFFICE, JOHN A. SQUIRES, UNDER SECRETARY
OF COMMERCE FOR INTELLECTUAL PROPERTY
AND DIRECTOR OF THE UNITED STATES
PATENT AND TRADEMARK OFFICE,
Defendants-Appellees
______________________
2024-1396
______________________
Appeal from the United States District Court for the
District of Columbia in No. 1:22-cv-02218-JDB, Judge John
D. Bates.
______________________
Decided: October 3, 2025
______________________
ROBERT G REENSPOON, Dunlap Bennett & Ludwig
PLLC, Chicago, IL, argued for plaintiffs-appellants. Also
represented by J ONATHAN HILL , Roetzel & Andress, LPA,
Chicago, IL.
WEILI J. SHAW , Appellate Staff, Civil Division, United
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US INVENTOR, INC. v. PTO 2
States Department of Justice, Washington, DC, argued for
defendants-appellees. Also represented by BRIAN M.
BOYNTON; MICHAEL S. F ORMAN, Office of the Solicitor,
United States Patent and Trademark Office, Alexandria,
VA. Defendant-appellee John A. Squires also represented
by F ARHEENA YASMEEN RASHEED.
______________________
Before L OURIE, REYNA , and STARK, Circuit Judges.
REYNA, Circuit Judge.
US Inventor, Inc. and National Small Business United
jointly filed a petition for rulemaking to establish criteria
to limit the authority of the United States Patent and
Trademark Office to institute inter partes or post-grant re-
view under the America Invents Act. The United States
Patent and Trademark Office denied the petition. Appel-
lants filed a complaint in the United States District Court
for the District of Columbia, alleging that the denial vio-
lated the Administrative Procedure Act and the America
Invents Act. The district court dismissed for lack of stand-
ing. For the reasons set forth below, we affirm.
BACKGROUND
In August 2020, US Inventor, Inc. and National Small
Business United (collectively, “appellants”) jointly filed a
petition for rulemaking to establish criteria for limiting the
discretionary authority of the United States Patent and
Trademark Office (“PTO”) to institute inter partes review
(“IPR”) and post-grant review (“PGR”) under the America
Invents Act (“AIA”). J.A. 49–68. The proposed rule would
amend IPR and PGR regulations, namely 37 C.F.R.
§§ 42.108 and 42.208, to add a “new subsection (d)” provid-
ing that, “[n]otwithstanding subsection (c),” an IPR or PGR
“shall not be instituted if the patent owner objects and” at
least one of five requirements is met. J.A. 60–62. One such
requirement, which contains three parts, is that the patent
owner:
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US INVENTOR, INC. v. PTO 3
(A) was the applicant to whom the patent was orig-
inally issued;
(B) claimed small entity or micro entity status at
the time the patent was issued; and
(C) actually reduced one or more of the challenged
claims to practice.
J.A. 61–62.
In October 2020, unrelated to appellants’ petition, the
PTO issued a request for comments on exercising discre-
tion not to institute IPR or PGR. Request for Comments on
Discretion to Institute Trials Before the Patent Trial and
Appeal Board, 85 Fed. Reg. 66502 (Oct. 20, 2020).
In October 2021, the PTO denied appellants’ petition.
J.A. 70–72. The PTO explained that while it “supports the
goal of providing clarity as to institution standards,” the
“issues raised in the [p]etition overlap those raised in the”
October 2020 request for comments. Id. Consequently, the
PTO wrote that the petition’s suggestions “will be consid-
ered as part of any future rulemaking” related to institu-
tion of IPR and PGR. J.A. 72.
In July 2022, appellants filed a complaint against the
PTO in the United States District Court for the District of
Columbia for denying their petition for rulemaking.
J.A. 26–47. Appellants argued that in denying their peti-
tion, the PTO committed three errors. First, the
PTO failed to “conclude a matter presented to it” “within a
reasonable time” under the Administrative Procedure Act
(“APA”) (5 U.S.C. § 555(b)), because the PTO’s denial only
promised consideration of the petition’s suggestions “in un-
specified ‘future rulemaking.’” J.A. 44–46. Second, the
PTO failed to provide “a brief statement of the grounds for
denial” under the APA (5 U.S.C. § 555(e)), because the
PTO’s promise to consider the petition’s suggestion in a fu-
ture rulemaking was not a “statement of the grounds for
denial” and was arbitrary and capricious. J.A. 44–45.
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US INVENTOR, INC. v. PTO 4
Third, the PTO failed to promulgate notice-and-comment
rulemaking as required by the AIA’s “statutory frame-
work,” referring to 35 U.S.C. §§ 2(b)(2), 315(d), 316(a)
and (b), 325(d), and 326(a). J.A. 43–45. Accordingly, ap-
pellants requested that the district court declare that the
PTO violated the APA and AIA when it denied their peti-
tion for rulemaking; vacate the PTO’s denial of the petition;
and order that the PTO “promptly act to conclude the mat-
ter presented” in the petition. J.A. 46. In September 2022,
the PTO filed a motion to dismiss appellants’ complaint,
arguing that they lacked standing. J.A. 110–40.
In April 2023, unrelated to appellants’ complaint, the
PTO issued an advance notice of proposed rulemaking re-
garding, in part, possible changes to the PTO Director’s dis-
cretionary authority to deny institution. Changes Under
Consideration to Discretionary Institution Practices, Peti-
tion Word-Count Limits, and Settlement Practices for
America Invents Act Trial Proceedings Before the Patent
Trial and Appeal Board, 88 Fed. Reg. 24503 (Apr. 21,
2023) (“ANPRM”).
In July 2023, the district court granted the PTO’s mo-
tion to dismiss. US Inventor, Inc. v. U.S. Pat. & Trademark
Off., 2023 WL 4488913, at *4–8 (D.D.C. July 12, 2023)
(“US Inventor”). The district court decided that appellants
lacked organizational and associational standing. Id. With
respect to associational standing, the district court con-
cluded that appellants failed to show that at least one
member of their organizations would have standing to sue
because appellants’ “theory of injury is too speculative to
describe a concrete injury from [PTO’s] denial of their peti-
tion.” Id. at *8. The district court explained that appel-
lants “relied on a specific, uncertain series of events based
on conjecture about how independent third parties, i.e. the
[Patent Trial and Appeal Board (‘PTAB’)] and a district
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US INVENTOR, INC. v. PTO 5
court, would act.” Id. (citation modified). In Septem-
ber 2023, appellants filed a notice of appeal. J.A. 255.1
In April 2024, the PTO issued a notice of proposed rule-
making on changes to the Director’s discretionary author-
ity to deny institution, partly “in light of stakeholder
feedback received in response to” the ANPRM from
April 2023. Patent Trial and Appeal Board Rules of Prac-
tice for Briefing Discretionary Denial Issues, and Rules
for 325(d) Considerations, Instituting Parallel and Serial
Petitions, and Termination Due to Settlement Agreement,
89 Fed. Reg. 28693, 28694 (Apr. 19, 2024) (“NPRM”).
D ISCUSSION
Appellants argue that the district court erred in dis-
missing their complaint for lack of standing. Specifically,
appellants argue that they have associational standing.2
Appellants Br. 17–35. For the following reasons, we disa-
gree.3
1 Appellants initially appealed to the United States
Court of Appeals for the District of Columbia Circuit,
J.A. 255, which then granted the PTO’s motion to transfer
to this court. US Inventor, Inc. v. U.S. Pat. & Trademark
Off., 2024 WL 1021257, at *1 (D.C. Cir. Jan. 23, 2024).
2 Appellants do not appeal the district court’s deter-
mination that they lack organizational standing.
3 The PTO also argues that its issuance of the 2024
NPRM moots this appeal because the NPRM proposes to
regulate matters addressed in appellants’ petition for rule-
making. Appellees Br. 15–19. As we decide that appel-
lants lack standing, we do not reach mootness. See Friends
of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,
528 U.S. 167, 191 (2000) (“[I]f a plaintiff lacks standing at
the time the action commences, the fact that the dispute is
capable of repetition yet evading review will not entitle the
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US INVENTOR, INC. v. PTO 6
“We apply regional circuit law to our review of a dis-
missal of a complaint for lack of standing unless the issue
is unique to patent law and therefore exclusively assigned
to the Federal Circuit.” Univ. of S. Fla. Rsch. Found., Inc.
v. Fujifilm Med. Sys. U.S.A., Inc., 19 F.4th 1315, 1323
(Fed. Cir. 2021); see Int’l Nutrition Co. v. Horphag Rsch.
Ltd., 257 F.3d 1324, 1328 (Fed. Cir. 2001). The D.C. Cir-
cuit reviews dismissals for lack of standing de novo. Hard-
away v. D.C. Hous. Auth., 843 F.3d 973, 977
(D.C. Cir. 2016). Consequently, we review this appeal de
novo.
“The doctrine of standing is one of several doctrines
that reflect” the “fundamental limitation” of Article III of
the U.S. Constitution, which “restricts [the judicial power]
to . . . redress or prevent actual or imminently threatened
injury to persons caused by private or official violation of
law.” Summers v. Earth Island Inst., 555 U.S. 488, 492–93
(2009). The plaintiff “bears the burden of showing that he
has standing for each type of relief sought.” Id. at 493. The
D.C. Circuit has “h[e]ld that a plaintiff may cure a standing
defect under Article III through [a supplemental] pleading
alleging facts that arose after filing the original complaint.”
Scahill v. District of Columbia, 909 F.3d 1177, 1184
(D.C. Cir. 2018) (discussing Federal Rule of Civil Proce-
dure 15(d)); accord Prasco, LLC v. Medicis Pharm. Corp.,
537 F.3d 1329, 1337 (Fed. Cir. 2008) (assessing subject
matter jurisdiction based on a supplemented complaint).
Standing requires (1) that the plaintiff “suffered an in-
jury in fact”; (2) “a causal connection between the injury
complainant to a federal judicial forum.”). We also note
that the PTO concedes that “[b]oth mootness and standing
are threshold jurisdictional questions, and this court can
take up either one of them first.” Oral Arg. at 14:48–54,
available at https://oralarguments.cafc.uscourts.gov/de-
fault.aspx?fl=24-1396_07072025.mp3.
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US INVENTOR, INC. v. PTO 7
and the conduct complained of”; and (3) that the injury is
“likely” to be “redressed by a favorable decision.” Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (citation mod-
ified). An injury in fact is “an invasion of a legally protected
interest” that is “concrete and particularized,” and “actual
or imminent,” but not “conjectural or hypothetical.” Id. at
560 (citation modified). When “analyzing standing issues,”
a court applying D.C. Circuit law “must accept as true all
material allegations of the complaint,” but a plaintiff seek-
ing a federal forum must allege “facts,” not “predictions.”
United Transp. Union v. ICC, 891 F.2d 908, 911–13
(D.C. Cir. 1989) (citation modified). Accordingly, “[w]hen
considering any chain of allegations for standing pur-
poses,” we “may reject as overly speculative those links
which are predictions of future events (especially future ac-
tions to be taken by third parties).” Id. at 912 (emphasis
added). “[T]hose types of allegations . . . are not normally
susceptible of labelling as true or false,” and the D.C. Cir-
cuit’s “authority to reject as speculative allegations of fu-
ture injuries is well-established.” Id. (citation modified);
see also Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905,
913 (D.C. Cir. 2015). Relevant to this appeal, “the grant of
a procedural right alone,” like that to petition for rulemak-
ing, “cannot serve as the basis for Article III standing un-
less the procedures in question are designed to protect
some threatened concrete interest of petitioners’ that is the
ultimate basis of his standing.” Gettman v. Drug Enf’t Ad-
min., 290 F.3d 430, 433 (D.C. Cir. 2002) (citation modified).
Advocacy organizations like appellants have associa-
tional standing if “(1) at least one of their members would
have standing to sue; (2) the interests they seek to protect
are germane to the organizations’ purposes; and (3) neither
the claim asserted nor the relief requested requires the
participation of individual members.” Sierra Club v. EPA,
754 F.3d 995, 999 (D.C. Cir. 2014). On appeal, the only
standing requirement at issue is the first: whether at least
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US INVENTOR, INC. v. PTO 8
one member of appellants’ organizations would have had
standing to sue at the time the complaint was filed.
Here, appellants lack associational standing because
they fail to show that at least one of their members would
have standing to sue. See id.; US Inventor, 2023 WL
4488913, at *5–8. Specifically, they do not show that any
of their members suffers a non-speculative injury in fact
from the PTO’s denial of appellants’ petition for rulemak-
ing. Appellants argue that, due to the PTO’s denial of their
petition, their members suffer the injury of “the risk of can-
cellation of a patent and/or patent claim as a result of in-
stitution.” J.A. 191; see Appellants Br. 7, 15–16. However,
there is no showing that the risk of cancellation to any one
member of appellants’ organizations is “actual or immi-
nent” in the absence of appellants’ proposed rulemaking.
See Lujan, 504 U.S. at 560. To the contrary, the alleged
injury is “conjectural or hypothetical.” Id. (citation modi-
fied).
As the district court explained, an extended chain of
events would have to occur before the PTO’s denial of ap-
pellants’ petition would harm a member by resulting in the
risk of cancellation. See US Inventor, 2023 WL 4488913,
at *6; see also Clapper v. Amnesty Int’l USA, 568 U.S. 398,
410–11 (2013) (finding lack of standing where plaintiffs’ al-
leged injury “rest[ed] on their highly speculative fear” that
five-part “chain of contingencies” would occur). Because,
as we discuss below, one or more of the events in this chain
are speculative, appellants have failed to meet their bur-
den to show they have standing to pursue the relief they
seek. See Clapper, 568 U.S. at 410–11 (noting that plain-
tiffs did not have standing because, under the facts alleged,
a single link in five-step “chain of contingencies” amounted
to “mere speculation”). First, a third party must file a pe-
tition for IPR or PGR on claims in a patent or patents
owned by a member of appellants’ organizations. US In-
ventor, 2023 WL 4488913, at *6. Second, the IPR or PGR
petition must satisfy minimum standards for institution,
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US INVENTOR, INC. v. PTO 9
as provided under 35 U.S.C. §§ 314(a) and 324(a). Id.
Third, the Board must exercise the Director’s discretionary
authority to grant institution of IPR or PGR under current
PTO guidance, despite the patent owner meeting one of the
requirements proposed in appellants’ petition for rulemak-
ing. Id. Fourth, institution must increase the probability
that the Board would cancel the challenged patent or
claims as compared to alternative proceedings, such as dis-
trict court litigation.4 Id. Even taking the well-pled factual
allegations in appellants’ operative complaint as true, one
or more of the links in this chain are speculative, so they
lack standing. See Clapper, 568 U.S. at 410–11.
The first required event in the chain is that a third
party must file a petition challenging the patentability of a
patent owned by a member of appellants’ organizations.
This step is especially speculative because it is entirely
within a third party’s control. See US Inventor, 2023 WL
4488913, at *6; Food & Water Watch, 808 F.3d at 913.
Strikingly, while the operative complaint and its at-
tachments contain allegations of the harm that appellants’
members may suffer when a third party files such a peti-
tion, see, e.g., J.A. 27–28, 98, 102–03, it contains next to
nothing showing that any specific member will in the fu-
ture see its patents be the subject of a petition.
While the highly speculative nature of this first step is
sufficient grounds on which to affirm the district court, we
briefly discuss two other steps as well given that they raise
issues related to the first step. At the second step—which,
again, is the requirement that the IPR or PGR petition sat-
isfy the minimum merits-based standards for institution,
4 As noted, standing is lacking where one or more of
the links in the chain are speculative. Because we find this
appeal dispositive as to the first three steps, we do not ad-
dress the fourth step.
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US INVENTOR, INC. v. PTO 10
such that the petition is not rejected for lack of merit—it is
incontestable that the content of any petition is within the
control of the third parties that draft such petitions. In ad-
dition, once a petition has been drafted and submitted, a
different third party, the Board, may deny an IPR or PGR
petition based on the statutory requirements for institu-
tion—before the Board even has the chance to consider de-
nial based on any new regulations that the PTO may adopt
in following appellants’ proposed rulemaking. See US In-
ventor, 2023 WL 4488913, at *6. As a result, the new reg-
ulations sought by appellants may not even make a
difference in whether the Board decides to institute. See
Food & Water Watch, 808 F.3d at 913. Thus, it remains
speculative whether agency action that “conclude[s] the
matter presented” in appellants’ proposed rulemaking,
J.A. 46, would actually increase the rate of denial of insti-
tution.
At the next step, even if a third party files a petition
meeting the merits requirements for institution, the Board
may nevertheless deny institution based on its current
scope of discretion, which does not incorporate the re-
strictions contemplated by appellants’ proposed regula-
tions. To the extent the Board might already exercise its
discretion to deny institution of meritorious petitions di-
rected at patents held by appellants’ members, they have
failed to allege facts showing any concrete and particular-
ized injury from the absence of their desired regulation.
In sum, one or more of the events in the causal chain of
events that must occur to result in injury is highly specu-
lative, especially because appellants largely depend on “fu-
ture actions to be taken by third parties,” including IPR or
PGR petitioners and the Board. See United Transp. Union,
891 F.2d at 912. Accordingly, the alleged future injury due
to the purported risk of cancellation of appellants’ mem-
bers’ patents or patent claims is insufficient because the
assertion of injury “involves a significant degree of guess
work.” Apple Inc. v. Vidal, 63 F.4th 1, 16 (Fed. Cir. 2023),
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US INVENTOR, INC. v. PTO 11
cert. denied sub nom. Intel Corp. v. Vidal, 144 S. Ct. 548
(2024) (citation modified). As a result, this alleged injury
is not “certainly impending,” and there is no “substantial
risk that the harm will occur.” Id. (citations omitted).
Appellants argue that a member of US Inventor, 10Ta-
les, suffers imminent harm of the risk of cancellation. Ap-
pellants Br. 33–35. Appellants focus on a petition for IPR
of a patent owned by 10Tales. Id.; see J.A. 93–94. Accord-
ing to appellants, the Board denied institution on the mer-
its, but 10Tales still suffers imminent harm because it now
faces a “renewed threat” of cancellation if the petitioner
files for reconsideration “without the benefit of regulations
proposed to insulate small business from such assaults.”
Appellants Br. 33. However, as appellants conceded below,
the Board “denied institution on the merits,” J.A. 94 (em-
phasis added), without reaching the discretionary factors
at issue in appellants’ petition for rulemaking. US Inven-
tor, 2023 WL 4488913, at *7. Hence, at best for appellants,
reconsideration only restarts the causal chain, setting it
back to the first step, which is inadequate for all the rea-
sons we have already explained. Accordingly, the operative
complaint does not allege facts demonstrating that 10Tales
could plausibly believe that its patent will be the subject of
a subsequent challenge before the Board.
In appellants’ opening brief, 10Tales is the only mem-
ber of appellants’ organizations that they allege suffers in-
jury in fact. Appellants Br. 33–35. In appellants’ reply
brief, they also argue that various other named members
suffer injury in fact because they have been the subject of
IPRs or PGRs since the complaint was filed and thus face
risk of cancellation. Appellants Reply Br. 2–5, 8–13. Ap-
pellants did not make these arguments in their opening
brief, which means we could treat them as waived. See
SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312,
1319 (Fed. Cir. 2006).
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US INVENTOR, INC. v. PTO 12
Appellants also assert that the petitions for IPR and
PGR of the patents owned by named members other than
10Tales establish standing because they show that appel-
lants’ members in general are “repeat player[s],” as in Ap-
ple, 63 F.4th at 16, whose risk of cancellation is “capable of
repetition yet evading review.” Appellants Reply Br. 1–2;
see id. at 4–5, 11. But there is no showing that any one of
appellants’ members is a repeat player. Moreover, whether
a disputed activity is “capable of repetition yet evading re-
view” is an exception to mootness, not a basis for standing.
See Friends of the Earth, 528 U.S. at 190–91.
Appellants further argue that this case is no different
than Apple, in which we found standing. Appellants
Br. 1–3. In Apple, we concluded that Apple had standing
to challenge the Director’s guidance instructing the Board
to consider certain factors when exercising discretion to in-
stitute IPRs on claims also at issue in parallel infringement
lawsuits. Apple, 63 F.4th at 16–17 (addressing the “Fintiv
factors,” see Apple Inc. v. Fintiv, Inc., 2020 WL 2126495,
at *2 (P.T.A.B. Mar. 20, 2020) (precedential)). The dispos-
itive fact in Apple is that Apple is a repeat player and on a
very large scale, as it has been sued for infringement on a
regular basis, for many years, and Apple regularly peti-
tions for an IPR of patent claims at issue in such suits. Id.
Apple’s complaint also contained detailed allegations of
past harm, which can be probative of standing based on the
threat of future conduct. See City of Los Angeles v. Lyons,
461 U.S. 95, 102 (1983) (“Past wrongs” may be “evidence
bearing on whether there is a real and immediate threat of
repeated injury.” (citation modified)).
Thus, we explained that Apple was very likely to re-
peatedly petition for IPR of patent claims asserted in in-
fringement suits against it. Apple, 63 F.4th at 17.
Accordingly, Apple had a “concrete stake” and a “far from
speculative” risk of future injury. Id. We concluded that
Apple plausibly alleged that the Director’s guidance would
“cause more denials of institution than might otherwise
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US INVENTOR, INC. v. PTO 13
occur,” and, as a result, the guidance would “continue caus-
ing harm in the form of denial of the benefits of IPRs linked
to the concrete interest possessed by an infringement de-
fendant.” Id. This amounted to a “substantial risk that the
harm would occur.” Id. (citation modified). In other words,
we concluded that it was not speculative that Apple would
be sued for infringement, would petition for IPR to defend
against assertions of unpatentability, and then would be
denied institution on the basis of the challenged guidance.
In contrast, appellants have not shown that third par-
ties regularly file petitions for IPR or PGR against any sin-
gle one of its members. Nor have they alleged past harm
of the kind that could be probative of future, non-specula-
tive harm. We also note that, in Apple, Apple itself was the
party that repeatedly petitioned for IPR, leading to the
likely harm of denial of institution under its own petitions.
By contrast, in the present appeal, the party that would
petition for IPR or PGR would be an unidentified third
party, not a member of appellants’ organizations, and the
asserted harm is risk of cancellation due to the decision to
institute, not denial of institution.
Appellants also argue that their right to petition for
rulemaking is a procedure “designed to protect some
threatened concrete interest,” Gettman, 290 F.3d at 433,
because the PTO’s denial of the petition “directly affected”
their members’ “property rights.” Appellants Br. 26–27.
However, the ability to petition for rulemaking before the
PTO does not inherently protect patent owners’ property
rights. As explained, appellants fail to show that any one
of their members have a “concrete interest apart from the
procedural injury.” Fund Democracy, LLC v. SEC,
278 F.3d 21, 28 (D.C. Cir. 2002).
We thus conclude that appellants lack associational
standing.
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US INVENTOR, INC. v. PTO 14
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the district court’s judgment dismissing appellants’
complaint for lack of standing.
AFFIRMED
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