General Electric Company v. United Technologies Corp. , 928 F.3d 1349 ( 2019 )

United States Court of Appeals
for the Federal Circuit
______________________
GENERAL ELECTRIC COMPANY,
Appellant
v.
UNITED TECHNOLOGIES CORPORATION,
Appellee
______________________
2017-2497
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2016-
00531.
______________________
Decided: July 10, 2019
______________________
BRIAN E. FERGUSON, Weil, Gotshal & Manges LLP,
Washington, DC, argued for appellant. Also represented
by STEPHEN BOSCO, CHRISTOPHER PEPE; ANISH R. DESAI,
New York, NY.
MICHAEL VALAIK, Bartlit Beck Herman Palenchar &
Scott LLP, Chicago, IL, argued for appellee. Also repre-
sented by PATRICK JOSEPH COYNE, MICHAEL ANDREW
HOLTMAN, SYDNEY KESTLE, JEFFREY CURTISS TOTTEN, Fin-
negan, Henderson, Farabow, Garrett & Dunner, LLP,
Washington, DC; BENJAMIN AARON SAIDMAN, Atlanta, GA.
______________________
2 GENERAL ELECTRIC COMPANY v. UNITED TECHNOLOGIES
CORP.
Before REYNA, TARANTO, and HUGHES, Circuit Judges.
Opinion for the court filed by Circuit Judge REYNA.
Concurring opinion filed by Circuit Judge HUGHES.
REYNA, Circuit Judge.
General Electric Company petitioned the United
States Patent Trial and Appeal Board for inter partes re-
view of U.S. Patent No. 8,511,605. United Technologies
Corporation is the assignee of the patent. The Board found
the claims not obvious in view of the prior art. General
Electric appeals. For the reasons discussed below, we hold
that General Electric lacks Article III standing and accord-
ingly, we dismiss the appeal.
BACKGROUND
Appellee United Technologies Corporation (“UTC”) is
the assignee of U.S. Patent No. 8,511,605 (“the ’605 pa-
tent”). The ’605 patent is generally directed to a gas tur-
bine engine having a gear train driven by a spool with a
low stage count low pressure turbine. ’605 patent, Ab-
stract. This particular gas turbine engine is designed for
use in airplanes and has an axially movable variable area
fan nozzle.
On January 29, 2016, General Electric Company
(“GE”) filed a petition for inter partes review (“IPR”) chal-
lenging claims 1 and 2 of the ’605 patent on grounds of an-
ticipation and claims 7–11 of the ’605 patent on grounds of
obviousness. After institution, UTC disclaimed claims 1
and 2, leaving only claims 7–11 at issue. On June 26, 2017,
the United States Patent Trial and Appeal Board (“Board”)
issued a Final Written Decision concluding that the pre-
ponderance of the evidence did not show claims 7–11 of the
’605 patent to be unpatentable for obviousness. GE timely
appealed to this court.
GENERAL ELECTRIC COMPANY v. UNITED TECHNOLOGIES 3
CORP.
On December 29, 2017, UTC moved to dismiss GE’s ap-
peal for lack of standing. UTC asserted that GE lacked
standing because it failed to demonstrate a sufficient in-
jury in fact. In support, UTC pointed to this court’s deci-
sions holding that an appellant does not automatically
possess standing to appeal an adverse Board decision by
virtue of serving its petitions in the challenged IPR. GE
submitted a response on January 16, 2018, including the
Declaration of Alexander E. Long, GE’s Chief IP Counsel
and General Counsel of Engineering for GE Aviation
(“First Long Declaration”). Mr. Long explained that the
commercial aircraft engine business operates on a long life-
cycle and that airplane engines are designed to meet cer-
tain specifications for certain aircraft. Because the design
of aircraft engines can take eight years or more, GE devel-
ops new engines based on old designs. Mr. Long stated
that, in the 1970s, GE developed a geared turbofan engine
with a variable area fan nozzle for NASA. GE asserted that
the ’605 patent impedes its ability to use its 1970s geared-
fan engine design as a basis for developing and marketing
future geared turbofan engine designs with a variable area
fan nozzle, thereby limiting the scope of GE’s engine de-
signs and its ability to compete in a highly regulated indus-
try. Mr. Long also declared that designing around the ’605
patent restricts GE’s design choices and forced GE to incur
additional research and development expenses.
We denied UTC’s motion without addressing the mer-
its and ordered UTC to brief the issue in its responsive ap-
pellate brief. The parties subsequently briefed the
standing issue. GE argued that the injuries it suffered in-
clude statutory estoppel, economic loss, future threat of lit-
igation, and competitive harm. GE relied on the First Long
Declaration as evidence to show its injuries. UTC argued
that GE suffered no injury in fact because: (1) UTC has not
sued or threatened to sue GE for infringement of the ’605
patent; (2) GE does not offer evidence of a concrete and par-
ticularized economic injury because it has not developed an
4 GENERAL ELECTRIC COMPANY v. UNITED TECHNOLOGIES
CORP.
engine that implicates claims 7–11 of the ’605 patent; and
(3) statutory estoppel and the competitive standing doc-
trine do not apply to GE.
We heard oral argument on November 7, 2018. Much
of oral argument focused on whether GE had constitutional
standing to appeal and whether general statements made
in the First Long Declaration were sufficient to establish
standing. We subsequently ordered GE to supplement the
First Long Declaration and submit any additional declara-
tions that would provide greater specificity regarding the
asserted injury GE contends provides sufficient standing to
appeal in this matter. We provided UTC with an oppor-
tunity to respond.
Each party filed its supplemental submission. GE filed
an additional declaration from Mr. Long on November 28,
2018 (“Second Long Declaration”). In his second declara-
tion, Mr. Long stated that Boeing requested information
from GE and several of its competitors for engine designs
for future Boeing aircrafts. Mr. Long also noted that Boe-
ing requested information regarding designs for both
geared-fan engines and direct-drive engines.
In response to Boeing’s request, GE researched a
geared-fan engine design that “would potentially implicate
[UTC’s] 605 Patent.” Second Long Decl. ¶ 5. GE asserts it
“expended time and money researching and further devel-
oping” this technology for the potential business oppor-
tunity with Boeing. Id. ¶ 7. Ultimately, GE chose not to
submit to Boeing a geared-fan engine design and instead
submitted a design for a direct-drive engine of the type
used in GE’s current engine designs. The record does not
indicate why GE submitted a direct-drive engine design in-
stead of a geared-fan engine design. Nor does Mr. Long
state whether GE lost this particular bid. He contends only
that to maintain GE’s competitive position, it needs to be
able to meet customer needs with a geared-fan engine de-
sign that may implicate the ’605 patent.
GENERAL ELECTRIC COMPANY v. UNITED TECHNOLOGIES 5
CORP.
DISCUSSION
Not every party to an IPR will have Article III standing
to appeal a final written decision of the Board. See Phige-
nix, Inc. v. Immunogen, Inc., 845 F.3d 1168, 1172 (Fed. Cir.
2017) (citing Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct.
2131, 2143–44 (2016)). To establish standing, an appellant
must have suffered an injury in fact that has a nexus to the
challenged conduct and that can be ameliorated by the
court. Id. at 1171 (citing Spokeo, Inc. v. Robins, 136 S. Ct.
1540, 1545 (2016)). The injury in fact must be “concrete
and particularized,” not merely “conjectural or hypothet-
ical.” JTEKT Corp. v. GKN Auto. Ltd., 898 F.3d 1217, 1220
(Fed. Cir. 2018) (emphasis omitted) (first quoting Spokeo,
136 S. Ct. at 1545, and then quoting Lujan v. Defs. of Wild-
life, 504 U.S. 555, 560 (1992)).
GE has the burden of showing that it suffered an injury
in fact sufficient to confer Article III standing to appeal.
See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342
(2006). It is undisputed that GE did not establish before
the Board that it had standing to appeal the Board’s Final
Written Decision. See JTEKT, 898 F.3d at 1220. There-
fore, GE must create a record in this court with the “requi-
site proof of an injury in fact” sufficient to show that it has
standing to appeal. Id. (quoting Phigenix, 845 F.3d at
1171–72). As a result, GE has submitted two declarations
from Mr. Long and has proffered three theories of harm to
support standing: (1) competitive harm; (2) economic
losses; and (3) estoppel under 35 U.S.C. § 315(e). For the
reasons stated below, we reject GE’s arguments.
GE’s purported competitive injuries are too speculative
to support constitutional standing. See Phigenix, 845 F.3d
at 1171 (stating that the injury must be real or imminent).
Mr. Long’s declarations are the only evidence of standing
before the court, and neither shows a concrete and immi-
nent injury to GE related to the ’605 patent. Mr. Long does
not assert that GE lost bids to customers because it could
6 GENERAL ELECTRIC COMPANY v. UNITED TECHNOLOGIES
CORP.
offer only a direct-drive engine design. Nor does Mr. Long
attest that GE submitted a direct-drive engine design to
Boeing because of the ’605 patent. Mr. Long contends only
that GE expended some unspecified amount of time and
money to consider engine designs that could potentially im-
plicate the ’605 patent. Boeing may have asked for infor-
mation regarding a possible geared-fan engine design, but
there is no evidence that Boeing demanded or required an
engine covered by claims 7–11 of the ’605 patent, and there
is no indication that GE lost the Boeing bid. The evidence
shows that GE submitted to Boeing a direct-drive engine
design, but there is no indication as to why it opted not to
submit a geared-fan engine design. There is also no evi-
dence that GE lost business or lost opportunities because it
could not deliver a geared-fan engine covered by the upheld
claims or any evidence that prospective bids require
geared-fan engine designs. GE asserts only speculative
harm untethered to the ’605 patent. Without a real, par-
ticularized injury, GE lacks standing to appeal the IPR de-
cision.
We recently addressed the “competitor standing” doc-
trine in AVX Corp. v. Presidio Components, Inc., 923 F.3d
1357 (Fed. Cir. 2019). There, we concluded that the appel-
lant lacked Article III standing because it had “no present
or nonspeculative interest in engaging in conduct even ar-
guably covered by the patent claims at issue.” Id. at 1363.
We explained that competitor standing has been found
when government action alters competitive conditions. Id.
at 1364 (citing Clinton v. City of New York, 524 U.S. 417,
433 (1998)). In those circumstances, the government “pro-
vides benefits to an existing competitor or expands the
number of entrants in the petitioner’s market, not an
agency action that is, at most, the first step in the direction
of future competition.” Id. at 1364 (quoting New World Ra-
dio, Inc. v. FCC, 294 F.3d 164, 172 (D.C. Cir. 2002)).
For the competitor standing doctrine to apply, the gov-
ernment action must change the competitive landscape by,
GENERAL ELECTRIC COMPANY v. UNITED TECHNOLOGIES 7
CORP.
for example, creating new benefits to competitors. Put an-
other way, the government action must alter the status quo
of the field of competition. Here, the Board’s upholding of
claims 7–11 of the ’605 patent did not change the competi-
tive landscape for commercial airplane engines. See id.
(“The government action is the upholding of specific patent
claims, which do not address prices or introduce new com-
petitors, but rather give exclusivity rights over precisely
defined product features.”). Therefore, we see no competi-
tive harm to GE sufficient to establish standing to appeal.
We similarly reject GE’s economic losses argument.
GE contends that it has been injured by increased research
and development costs sustained by attempts to design en-
gines that could implicate the ’605 patent and engines that
do not implicate the ’605 patent. Yet, GE provides no fur-
ther details. It fails to provide an accounting for the addi-
tional research and development costs expended to design
around the ’605 patent. It provides no evidence that GE
actually designed a geared-fan engine or that these re-
search and development costs are tied to a demand by Boe-
ing for a geared-fan engine. The only evidence that GE
actually designed a geared-fan engine is the engine that it
designed in the 1970s. Any economic loss deriving from the
1970s engine is not an imminent injury. See Lujan, 504
U.S. at 560 (stating that injury in fact must be actual or
imminent). Aside from a broad claim of research and de-
velopment expenditures, GE has provided no evidence that
these expenses were caused by the ’605 patent. See id. (re-
quiring “a causal connection between the injury and the
conduct complained of”). Therefore, GE’s broad claim of
economic loss is insufficient to confer standing.
There is also no evidence that GE is in the process of
designing an engine covered by claims 7–11 of the ’605 pa-
tent. Nor has GE demonstrated that it has definite plans
to use the claimed features of the ’605 patent in the air-
plane engine market. See JTEKT, 898 F.3d at 1221 (hold-
ing appellant lacked standing because it had not
8 GENERAL ELECTRIC COMPANY v. UNITED TECHNOLOGIES
CORP.
established that it had “concrete plans for future activity
that creates a substantial risk of future infringement”).
UTC has not sued or threatened to sue GE for infringing
the ’605 patent. Appellee Br. 36. Therefore, GE’s future
harm argument fails.
GE also contends that estoppel under 35 U.S.C.
§ 315(e) creates injury in fact for standing purposes. We
have previously rejected the estoppel argument as a basis
for Article III standing. Where, as here, the appellant does
not currently practice the patent claims and the injury is
speculative, we have held that the estoppel provision does
not amount to an injury in fact. See, e.g., AVX Corp., 923
F.3d at 1362–63; Phigenix, 845 F.3d at 1175–76; Consumer
Watchdog v. Wis. Alumni Research Found., 753 F.3d 1258,
1262 (Fed. Cir. 2014). We see no need to reach a different
conclusion on this record.
CONCLUSION
We have considered GE’s remaining arguments and
find them unpersuasive. We hold that GE lacks Article III
standing to appeal the Board’s Final Written Decision and
therefore dismiss the appeal.
DISMISSED
COSTS
No costs.
United States Court of Appeals
for the Federal Circuit
______________________
GENERAL ELECTRIC COMPANY,
Appellant
v.
UNITED TECHNOLOGIES CORPORATION,
Appellee
______________________
2017-2497
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2016-
00531.
______________________
HUGHES, Circuit Judge, concurring.
Because our recent precedent compels holding that
General Electric Company lacks Article III standing here,
I concur in the judgment. I write separately because I be-
lieve that precedent has developed an overly rigid and nar-
row standard for Article III standing in the context of
appeals from inter partes review proceedings.
Our recent decision in AVX Corp. v. Presidio Compo-
nents, Inc., 923 F.3d 1357 (Fed. Cir. 2019), which I believe
was incorrectly decided, takes a patent-specific approach to
the doctrine of competitor standing that is out of step with
Supreme Court precedent. The Court has repeatedly held
that government actions altering the competitive land-
scape of a market cause competitors probable economic
2 GENERAL ELECTRIC COMPANY v. UNITED TECHNOLOGIES
CORP.
injury sufficient for Article III standing. And I do not be-
lieve that a Board decision erroneously upholding a com-
petitor’s patent in an IPR is meaningfully different from
the type of government actions held to invoke competitor
standing in those cases. Thus, absent our holding in AVX
Corp., I would conclude that GE possesses Article III stand-
ing in this appeal.
I
The parties here are direct competitors in the commer-
cial aircraft turbofan engine market. GE, both itself and
through joint ventures, “designs, tests, certifies, manufac-
tures, and supplies aircraft engines” for major airplane
manufacturers, or “airframers,” such as Boeing and Airbus.
Decl. of Alexander E. Long 2 ¶ 3, ECF No. 36. During the
design process, “airframers explain to GE their needs and
requirements for turbofan engines, to enable GE to provide
competitive offerings that will satisfy the airframers’ re-
quirements.” Suppl. Decl. of Alexander E. Long 2 ¶ 3, ECF
No. 64.
Due to the safety and regulatory requirements of the
turbofan engine market, “designing, developing, testing,
and certifying a new aircraft engine can take eight to ten
years or longer.” Long Decl. 3 ¶ 6. And “[t]here is enor-
mous up-front investment required.” Long Decl. 4 ¶ 7. Ac-
cordingly, “new aircraft engine design work necessarily
begins years before there is any commercial sale or offer for
sale of the final engine.” Long Decl. 4 ¶ 8.
According to GE, competition in the aircraft engine
market is fierce, and the market is dominated by three ma-
jor players: GE, Universal Technologies Corporation, and
Rolls-Royce. GE petitioned for IPR of a patent owned by
UTC. That patent is directed to a turbofan engine design
– the very type of technology over which GE and UTC
fiercely compete. The Board decided that GE failed to show
that the challenged claims were unpatentable, and GE ap-
pealed that decision to this Court.
GENERAL ELECTRIC COMPANY v. UNITED TECHNOLOGIES 3
CORP.
UTC filed a motion to dismiss the appeal, arguing that
GE lacks Article III standing because GE does not produce
or plan to produce an engine that would infringe its patent.
Relying on precedent of both this Court and the Supreme
Court, GE argued that the Board’s decision to uphold UT’s
patent caused GE a concrete competitive injury sufficient
to satisfy Article III standing.
II
The sole issue with respect to standing in this case is
whether GE has shown that it has suffered an injury-in-
fact. An injury-in-fact requires a party to establish “an in-
vasion of a legally protected interest which is (a) concrete
and particularized, and (b) actual or imminent, not conjec-
tural or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S.
555, 560 (1992) (internal quotation marks and citations
omitted). This requirement “ensure[s] that the plaintiffs
have a stake in the fight and will therefore diligently pros-
ecute the case . . . while, at the same time, ensuring that
the claim is not abstract or conjectural so that resolution
by the judiciary is both manageable and proper.” Cana-
dian Lumber Trade All. v. United States, 517 F.3d 1319,
1333 (Fed. Cir. 2008) (internal quotation marks omitted);
see also Massachusetts v. E.P.A., 549 U.S. 497, 517 (2007)
(“At bottom, ‘the gist of the question of standing’ is whether
petitioners have ‘such a personal stake in the outcome of
the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the
court so largely depends for illumination.’” (quoting Baker
v. Carr, 369 U.S. 186, 204 (1962))). But “[i]njury-in-fact is
not Mount Everest.” Canadian Lumber, 517 F.3d at 1333
(quoting Danvers Motor Co. v. Ford Motor Co., 432 F.3d
286, 294 (3d Cir. 2005)); accord Bowman v. Wilson, 672
F.2d 1145, 1151 (3d Cir. 1982) (“The contours of the injury-
in-fact requirement, while not precisely defined, are very
generous.”).
4 GENERAL ELECTRIC COMPANY v. UNITED TECHNOLOGIES
CORP.
Many of our recent cases dealing with injury-in-fact in
IPR appeals have focused on the appellant/petitioner’s like-
lihood of facing a future infringement suit. See JTEKT
Corp. v. GKN Auto. LTD., 898 F.3d 1217, 1220 (Fed. Cir.
2018) (noting that “typically in order to demonstrate the
requisite injury in an IPR appeal, the appellant/petitioner
must show that it is engaged or will likely engage ‘in an[ ]
activity that would give rise to a possible infringement
suit,’ . . . or has contractual rights that are affected by a
determination of patent validity” (quoting Consumer
Watchdog v. Wis. Alumni Research Found., 753 F.3d 1258,
1262 (Fed. Cir. 2014))); see also Momenta Pharm., Inc. v.
Bristol-Myers Squibb Co., 915 F.3d 764, 769–70 (Fed. Cir.
2019) (holding that an IPR petitioner lacked standing be-
cause it had abandoned its plans for developing a poten-
tially infringing product, so it no longer faced a potential
infringement suit); E.I. Dupont de Nemours & Co. v.
Synvina C.V., 904 F.3d 996, 1004 (Fed. Cir. 2018) (holding
that an IPR petitioner had suffered an injury in fact be-
cause it “currently operates a plant capable of infringing”
the challenged patent); Phigenix, Inc. v. Immunogen, Inc.,
845 F.3d 1168, 1173–74 (Fed. Cir. 2017) (noting that appel-
lant “does not contend that it faces risk of infringing the
[challenged] patent, that it is an actual or prospective li-
censee of the patent, or that it otherwise plans to take any
action that would implicate the patent”); Consumer Watch-
dog, 753 F.3d at 1262 (noting that the appellant/petitioner
“is not engaged in any activity that would give rise to a pos-
sible infringement suit”). But these cases do not suggest
that the only means for an IPR petitioner to establish in-
jury-in-fact is to show a reasonable likelihood of an immi-
nent infringement suit. Such a reading would conflate the
injury-in-fact analysis with the “reasonable apprehension
of imminent suit” test for declaratory judgment jurisdic-
tion, which the Supreme Court overruled. See MedIm-
mune, Inc. v. Genentech, Inc., 549 U.S. 118, 132 n. 11 (2007)
(noting that the “reasonable apprehension of suit” test con-
flicts with Supreme Court precedent); see also ABB Inc. v.
GENERAL ELECTRIC COMPANY v. UNITED TECHNOLOGIES 5
CORP.
Cooper Indus., LLC, 635 F.3d 1345, 1348 (Fed. Cir. 2011)
(recognizing that MedImmune rejected the requirement of
a “reasonable apprehension of imminent suit” to establish
declaratory judgment jurisdiction).
The risk of a future infringement suit is not the only
way an IPR petitioner can show injury-in-fact. “The [Su-
preme Court] routinely recognizes probable economic in-
jury resulting from [government actions] that alter
competitive conditions as sufficient to satisfy the [Article
III injury-in-fact requirement].” 3 K. Davis & R. Pierce,
Administrative Law Treatise 13–14 (3d ed. 1994); see also
Clinton v. City of New York, 524 U.S. 417, 433 (1998) (citing
David & Pierce, supra, at 13–14). This Court’s recent deci-
sion in AVX Corp. addressed the competitor standing doc-
trine in IPR appeals. We held that a patent could cause an
IPR petitioner competitive harm if the petitioner “was cur-
rently using the claimed features [of the challenged patent]
or nonspeculatively planning to do so in competition.” AVX
Corp., 923 F.3d at 1365. But if the petitioner is not cur-
rently engaged in infringing activity and has no concrete
plans to do so in the imminent future, we held that the
Board’s decision to uphold a challenged patent does not in-
voke the competitor standing doctrine. Id.
Thus, even when the parties are direct competitors, our
cases require an unsuccessful IPR appellant/petitioner to
show concrete current or future plans to infringe the chal-
lenged patent. I do not believe that Article III requires
such a showing, particularly where Congress has provided
IPR petitioners a procedural right of appeal. See 35 U.S.C.
§ 141; see also Consumer Watchdog, 753 F.3d at 1261 (rec-
ognizing that “where Congress has accorded a procedural
right to a litigant, such as the right to appeal an adminis-
trative decision, certain requirements of standing—namely
immediacy and redressability, as well as prudential as-
pects that are not part of Article III—may be relaxed”).
6 GENERAL ELECTRIC COMPANY v. UNITED TECHNOLOGIES
CORP.
AVX Corp. found that the “government action at issue
[in IPR] is quite different” from the government action in
other cases applying competitor standing. AVX Corp., 923
F.3d at 1365. According to AVX Corp., the “feature-specific
exclusivity right [of a patent] does not, by the operation of
ordinary economic forces, naturally harm a firm just be-
cause it is a competitor in the same market as the benefi-
ciary of the government action (the patentee).” Id. This
analysis sets patents apart from other applications of com-
petitor standing on the basis that a patent’s exclusivity
right is different than other interests. The Supreme Court,
however, has made clear that “[p]atent law is governed by
the same common-law principles, methods of statutory in-
terpretation, and procedural rules as other areas of civil
litigation.” SCA Hygiene Prods. Aktiebolag v. First Quality
Baby Prods., LLC, 137 S. Ct. 954, 964 (2017) (internal quo-
tation marks omitted).
Our patent-specific treatment of competitor standing is
out of step with its application in other areas. The Su-
preme Court has repeatedly found standing where govern-
ment action subjects the plaintiff to increased competition
because of the probable economic injury that accompanies
it. See Clinton, 524 U.S. at 433; Ass’n of Data Processing
Serv. Orgs., Inc., 397 U.S 150, 152 (1970); Inv. Co. Inst. v.
Camp, 401 U.S. 617, 620 (1971); accord Canadian Lumber,
517 F.3d at 1334; La. Energy & Power Auth. v. FERC, 141
F.3d 364, 367 (D.C. Cir. 1998). In Data Processing, for ex-
ample, the petitioners – organizations who sold data pro-
cessing services to businesses – challenged a ruling by the
Comptroller of Currency that allowed national banks to
provide data processing services to other banks and bank
customers. 397 U.S. at 151. The Supreme Court held that
the Comptroller’s ruling caused petitioners an injury-in-
fact because the resulting increase in competition would
likely cause petitioners future economic harm. Id. at 152.
Similarly, in Clinton the Supreme Court held that a farm-
ers’ cooperative suffered a concrete injury when the
GENERAL ELECTRIC COMPANY v. UNITED TECHNOLOGIES 7
CORP.
president cancelled a tax benefit enacted to facilitate the
purchase of processing plants by such cooperatives. 524
U.S. at 432. The Court found that “[b]y depriving [the co-
operative] of their statutory bargaining chip, the cancella-
tion inflicted a sufficient likelihood of economic injury to
establish standing under our precedents.” Id.
In both Data Processing and Clinton, the government
action subjected the challenger to increased competition.
The exclusionary right of a patent, however, allows the pa-
tent owner to exclude others from competing in its market.
But like an action that increases competition, government
action that excludes an appellant from effectively compet-
ing in a market, such as erroneously upholding its compet-
itor’s patent, provides a benefit to the competitor and
causes competitive harm to the appellant that presump-
tively leads to economic injury. See Canadian Lumber, 517
F.3d 1332 (noting that competitor standing “relies on eco-
nomic logic to conclude that a plaintiff will likely suffer an
injury-in-fact when the government acts in a way that in-
creases competition or aids the plaintiff's competitors” (em-
phasis added)). Thus, I do not believe there is any sound
basis for AVX Corp.’s patent-specific treatment of the com-
petitor standing doctrine.
The facts of this case further demonstrate why AVX
Corp.’s patent-specific approach is incorrect. GE and UTC
are direct competitors in a fiercely competitive market that
requires significant up-front investment years before any
profits can be realized. During the engine design process,
“airframers explain to GE their needs and requirements for
turbofan engines, to enable GE to provide competitive of-
ferings that will satisfy the airframers’ requirements.”
Long Suppl. Decl. at 2 ¶ 3. According to GE, one such air-
framer specifically requested that GE research an engine
design that would implicate UTC’s patent. But at least un-
til that patent expires, GE cannot design and produce such
an engine without risking infringement. Thus, UTC’s pa-
tent effectively precludes GE from meeting its customer’s
8 GENERAL ELECTRIC COMPANY v. UNITED TECHNOLOGIES
CORP.
design needs without spending additional resources to de-
sign around the patent. 1 I fail to see how this costly com-
petitive burden does not constitute a “concrete and
particularized” harm to GE. See Lujan, 504 U.S. at 560.
And GE certainly has a “personal stake in the outcome of
th[is] controversy,” which concerns the validity of a patent
owned by its direct competitor covering technology over
which the parties compete. E.P.A., 549 U.S. at 517 (inter-
nal quotation marks omitted).
Finally, as the majority correctly notes, we have re-
peatedly held that the estoppel provisions of 35 U.S.C.
§ 315(e), standing alone, do not create an injury. Maj. Op.
8. But the effects of that estoppel have especially signifi-
cant impact where the parties are direct competitors. Un-
like the appellant/petitioners in Consumer Watchdog or
Phigenix, who did not manufacture or sell products in the
market involving the patented technology, see Consumer
Watchdog, 753 F.3d at 1260; Phigenix, 845 F.3d at 1171,
GE is one of three major actors in the turbofan engine mar-
ket. Although we have not decided whether § 315(e) would
estop an IPR petitioner who lacked standing to appeal an
unfavorable Board decision, see AVX Corp., 923 F.3d at
1363, until we do, UTC’s patent is an even greater compet-
itive deterrent for GE. GE faces uncertainty as to whether
it is estopped from raising an invalidity defense on any
1 In Biotechnology Industry Organization v. District
of Columbia, we found that “[w]hether the Act is enforced
or not,” pharmaceutical manufacturers challenging a stat-
ute that penalized selling prescription drugs at “excessive
price[s]” could demonstrate injury-in-fact due to the “actual
administrative costs” they would necessarily incur in com-
plying with the statute. 496 F.3d 1362, 1370–71 (Fed. Cir.
2007). Those “actual administrative costs” are analogous
to the increased research and design costs that GE has al-
legedly suffered due to UTC’s patent.
GENERAL ELECTRIC COMPANY v. UNITED TECHNOLOGIES 9
CORP.
ground “that [it] raised or reasonably could have raised
during” its IPR. See § 315(e)(2). This uncertainty makes
facing potential infringement litigation significantly more
impactful on GE’s future design choices. Thus, while I
agree that 35 U.S.C. § 315(e) estoppel alone does not create
an injury-in-fact, its potential effects in this case under-
score the problems with our increasingly narrow approach
to Article III standing.
Absent AVX Corp., which I believe was incorrectly de-
cided, I would conclude that GE has established Article III
standing to appeal the Board’s adverse decision. Because
I am bound by that precedent, however, I respectfully con-
cur only in the judgment.