associational standing Archives

Now you know the limits on patent rights: Diversion of resources doesn’t establish standing

by Cecilia Choy, PhD | Sep 3, 2026 | Patents

Concluding that an organization cannot establish standing to seek prospective relief merely by alleging that it diverted resources in response to challenged conduct, the US Court of Appeals for the Federal Circuit affirmed dismissal of claims brought by inventor-advocacy organizations challenging language on the cover of issued patents because the organizations lacked both organizational and associational standing. US Inventor, Inc. v. Squires, Case No. 24-2378 (Fed. Cir. Aug. 21, 2026) (Moore, Cunningham, Kovner (sitting by designation), JJ.)

The cover of each newly issued patent includes language tracking the Patent Act, stating that the patent “grants to the persons having title to this patent the right to exclude others from making, using, offering for sale, or selling” the invention throughout the United States or importing the invention into the US. Three inventor advocacy organizations – US Inventor, Inventors Association of South Central Kansas, and Inventors Network of Minnesota – sued the United States Patent and Trademark Office (USPTO) and its acting director, alleging that this language was misleading in light of the Supreme Court’s 2006 decision in eBay v. MercExchange.

Plaintiffs contended that eBay eliminated any absolute right of a patent owner to exclude others because injunctive relief is no longer automatic upon a finding of infringement. They sought an order requiring the USPTO to change the patent cover language, an injunction prohibiting the USPTO from representing that patent owners possess an unequivocal right to exclude, and a declaration that the existing language is unlawful. The district court dismissed the complaint for lack of standing. Plaintiffs appealed.

The Federal Circuit affirmed, concluding that plaintiffs had not adequately alleged a real and immediate threat of future injury sufficient to support prospective injunctive or declaratory relief.

First, the Federal Circuit concluded that plaintiffs lacked organizational standing. An organization suing on its own behalf must satisfy the ordinary requirements of Article III standing, including demonstrating a concrete and imminent threat of future injury. Relying on the Supreme Court’s 2024 decision in FDA v. Alliance for Hippocratic Medicine, the Court explained that an organization does not suffer a cognizable injury merely because challenged conduct causes it to spend additional “time, energy, and resources on advocacy and education.”

Plaintiffs relied on a similar diversion-of-resources theory, alleging that the USPTO’s patent cover language required them to devote resources to educating inventors about the effect of eBay, thereby impairing their ability to pursue their organizational missions. The Federal Circuit found those allegations insufficient.

The Federal Circuit also rejected plaintiffs’ reliance on the Supreme Court’s 1982 decision in Havens Realty v. Coleman. In Havens, the challenged conduct directly interfered with the organization’s core activities because racial steering practices caused the organization to receive false housing information that it then passed along to home seekers. Here, by contrast, plaintiffs were aware of eBay and therefore were not themselves misled by the patent cover language. Their alleged injury instead arose from their decision to educate unidentified inventors who might misunderstand that language. Rather than alleging that the USPTO directly impeded their [...]

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Associational standing requires concrete, non-speculative harm

by Taylor MacDonald | Oct 16, 2025 | Patents

The US Court of Appeals for the Federal Circuit affirmed a district court decision dismissing a lawsuit against the United States Patent and Trademark Office (USPTO) for lack of associational standing since no member of the association had standing to sue. US Inventor, Inc. v. United States Patent and Trademark Office, Case No. 24-1396 (Fed. Cir. Oct. 3, 2025) (Lourie, Reyna, Stark, JJ.)

US Inventor and National Small Business United (collectively, the plaintiffs) jointly filed a petition for rulemaking at the USPTO to amend the regulations that control the USPTO’s discretion to institute inter partes review (IPR) or post-grant review (PGR) proceedings. The plaintiffs proposed five instances in which the USPTO would have no discretion to institute an IPR or PGR. Separately, the USPTO issued a request for public comments regarding institution discretion two months after the plaintiffs filed their petition.

Eventually, the USPTO denied the petition, citing redundancy with the request for public comment. The USPTO assured the plaintiffs that their request would be considered as a public comment.

In response, the plaintiffs filed a complaint in federal court claiming that the USPTO had committed three errors:

The USPTO’s assurance that the plaintiffs’ requests would be considered “in unspecified ‘future rulemaking’” violated its duty to conclude the matter in an appropriate amount of time, as required by the Administrative Procedure Act (APA).
Under the APA, the USPTO failed to state adequate grounds for denial.
The USPTO violated the America Invents Act (AIA) by “fail[ing] to promulgate notice-and-comment rulemaking.”

The USPTO filed a motion to dismiss, arguing that the plaintiffs lacked standing. The district court granted the motion, finding that the plaintiffs had neither organizational nor associational standing. The plaintiffs appealed.

Because the issue of associational standing was not specific to patent law, the Federal Circuit applied the law of the US Circuit Court for the District of Columbia, which reviews standing de novo.

Of the three requirements for associational standing (standing of at least one associational member, applicability of the issue to the association’s purposes, and individual member participation not required for the claim or relief), only the first was at issue.

The Federal Circuit concluded that since no member of the plaintiffs’ organizations had standing to sue, the plaintiffs themselves did not have associational standing. The Court noted that the plaintiffs had failed to claim anything more than speculative harm to any member resulting from the USPTO’s denial of plaintiffs’ petition. The Court found the “risk” of patent cancellation during an IPR or PGR proceeding insufficiently “actual or imminent” to afford any member standing to sue.

The Federal Circuit explained that a requisite third-party action outside of the plaintiffs’ control would need to occur before any harm to the plaintiffs’ members could be concretely realized. Third-party actions, including the filing of a petition for an IPR or PGR proceeding, the USPTO’s institution of such proceeding, and the USPTO’s ultimate decision in such proceeding, constitute multiple steps in the chain of events that might result in harm [...]

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Speculative Injury from Rulemaking Petition Denial Doesn’t Confer Standing

by Cecilia Choy, PhD and Hannah Hurley | Jul 20, 2023 | America Invents Act, Patents

The US District Court for the District of Columbia affirmed the dismissal of a case alleging that the US Patent & Trademark Office (PTO) violated the Administrative Procedure Act (APA) by denying the plaintiffs’ rulemaking petition. The district court found that the plaintiffs’ alleged injury was too speculative to confer Article III standing. US Inventor, Inc. v. US Patent and Trademark Office, Case No. 22-2218 (D.D.C. July 12, 2023) (Bates, J.)

Under the America Invents Act (AIA), the Patent Trial & Appeal Board may hear challenges to the validity of patents through inter partes review (IPR) and post-grant review (PGR). The decision to initiate a review is made at the discretion of the PTO on a case-by-case basis. US Inventor, Inc., and National Small Business United (collectively, NSBU) filed a rulemaking petition with the PTO, arguing that the PTO unlawfully designated cases as precedential or informative without putting those considerations through notice-and-comment rulemaking, as required by the APA. NSBU expressed the same position in a previous lawsuit filed in the Eastern District of Texas that was dismissed for lack of standing—a decision upheld by the US Court of Appeals for the Fifth Circuit. NSBU subsequently filed a lawsuit in the District of Columbia. The PTO filed a motion to dismiss for lack of standing.

In a motion to dismiss, a court will accept facts alleged in the complaint as true but will not assume the truth of legal conclusions. The District of Columbia noted that not every denial of a rulemaking petition confers standing on the petitioner. Standing is established by claiming an injury in fact that can be traced to the defendant’s actions and is likely to be redressed by the court. Therefore, a plaintiff must show that the denial of the petition caused a concrete injury in fact. Injury in fact must be concrete, particularized and not conjectural or hypothetical. Standing can be established via associational standing or organizational standing. Here, the court found that NSBU could establish neither.

In finding no associational standing, the District of Columbia agreed with the PTO that NSBU’s theory of injury was too speculative and not concrete. NSBU proposed an “uncertain series of events” that could lead to an alleged injury, but the court rejected the claim as attenuated conjecture based on the actions of independent third parties (similar to the fact pattern in the Supreme Court’s 2013 decision in Clapper v. Amnesty Int’l USA.)

The District of Columbia heavily criticized the first step of NSBU’s proposed series of events, which was that a valid IPR or PGR would have to be filed on behalf of a patent held by a member of NSBU’s organizations. The court found that identifying potential members that might face IPR or PGR proceedings if a third party decided to bring a claim against them was too hypothetical and relied entirely on the actions of a third party.

The District of Columbia also disagreed with NSBU’s reliance on statistics. NSBU argued that patent cancellation is more likely [...]

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