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« IBM Corp. v. Iancu (Fed. Cir. 2019) | Main | Novartis Pharmaceuticals Corp. v. West-Ward Pharmaceuticals Int'l (Fed. Cir. 2019) »

May 15, 2019


It may be interesting to contrast this clear and direct decision with some of the arguments that have been made seeking to bootstrap the NON Article III portion of the dual-zone AIA created mechanism as a means to avoid having actual Article III standing.

Unfortunately the court’s “competitor standing” analysis is erroneous. Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970) (7:2) (Majority: Douglas, J.; Brennan and White, JJ. concurring in the result but dissenting in the treatment of the standing question) (Justices Brennan and White staunchly support the injury in fact test expressed in the Majority opinion written by Douglas, J.) (9:0); Companion case: Barlow v. Collins, 397 U.S. 159 (1970) (Originally Brennan, J. was assigned to write the opinion in Barlow) (Note: Dissenting Brennan, J. in Barlow/Data Processing is more liberal than Douglas, J. writing for the Majority in Data Processing/Barlow) (Court finding Competitor standing).

First, Data Processing is generally acknowledged as establishing the modern standing doctrine, and in Data Processing the Supreme Court recognized and finds competitor standing. See id. at 152. Second, the Data Processing Court had “no doubt” that the plaintiff suffered “injury in fact, economic or otherwise” because the alleged increased competition “might entail some future loss of profits.” The nature of injury in fact in Data Processing is seldom discussed at any length either in the briefs or opinions. But a close reading of Data Processing is very instructive and makes clear that court's opinion in AVX is not supported by the facts of Data Processing. In Data Processing the petitioner alleged, as its injury, that the [agency] ruling "might entail some future loss of profits" and that a defendant bank was "performing or preparing to perform services for two customers for whom petitioner... had previously agreed or negotiated to perform such services." These allegations did not involve “actual” injury in fact but rather an entirely speculative detriment/injury/harm: the possible loss of future profits and the possible disruption of relationships which seem to have been in the early (preliminary) negotiation stage. Yet, apparently on the basis of these allegations of possible future harm alone, the Data Processing Court found that "there can be no doubt that the petitioner plaintiffs had satisfied this [injury in fact] test.” Third, since Data Processing, and in all subsequent competitor standing cases with a similar procedural posture, the USSC never mentioned a “nonspeculatively threatened economic injury” requirement. The Data Processing line of cases support a finding of standing on appeal in Avx Corp. v. Presidio Components.


Does that "close reading" move items from the dissent into being some type of holding?

Or should that close reading note that a certain desired view failed (turning a directed majority position writer into being a dissent writer)?

On that last note, this type of "lost majority position writer" status was also evident in what was to be the bookend patent case for Justice Stevens in Bilski (viewing his "concurrence" for what in truth it was: a dissent on what Justice Stevens wanted to do).

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