Ordinarily, an appeal involves an appellant who challenges the lower court's ruling, and an appellee who argues that the lower court's ruling should be affirmed. Not so in Knowles Elecs. LLC v. Iancu, an appeal from a Patent Trial and Appeal Board (PTAB) decision in which the Federal Circuit ruled that it may consider an appeal in which the only remaining litigants are the appellant and an intervenor arguing in the place of the absent appellee.
In this case, when the patent owner, Knowles Electronics, appealed from the PTAB's decision affirming the rejection of its patent claims, the would-be appellee—the third-party requester that initiated the inter partes reexamination that resulted in the rejection of the claims—declined to appear. Instead, the Director of the United States Patent and Trademark Office intervened in order to present written and oral argument in support of the PTAB's decision. (Since the passage of the America Invents Act, patent law has provided the Director with the right to intervene in certain appeals of PTAB decisions to the Federal Circuit.)
The Federal Circuit requested additional briefing on the Director's standing to intervene, and the majority of the three-judge panel ultimately determined that the Director had standing. It addressed the issue in a short footnote, which relies in part on the Supreme Court's recent decision in Cuozzo Speed Techs. LLC v. Lee. In Cuozzo, the Court explained that "the Patent Office may intervene in a later judicial proceeding to defend its decision—even if the private challengers drop out."
Judge Newman dissented, arguing that the majority gave this precedent an overly broad reading, overlooking a key distinction between Cuozzo and the present case. In Cuozzo, the Director defended not just the PTAB's decision, but also its legal authority to issue a regulation on which the PTAB had relied in its decision. The dissent argued that the challenge to the regulation presented a specific harm to the USPTO's interests and therefore provided a basis for the Director's standing that is not present when the Director's only interest is to defend the PTAB's decision on the merits. In these circumstances, "the intervenor does not have an independent interest or injury" and "the requirements of intervenor status are not met."
The majority opinion affirms the PTAB's decision to affirm the rejection of the patent claims at issue.
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