No CBM Standing for Customer of Party Sued for Infringement

The Board denied institution of covered business method review of a communications system patent because the petitioner did not have standing under § 18(a)(1)(B) and 37 CFR § 42.302. "The Petition does not assert that [the petitioner] has been sued or charged with infringement. . . . The allegation that [petitioner] is a privy of one or more parties who have been sued for infringement, even if supported by evidence, would not establish standing for [petitioner]. During the . . . Senate debates on the AIA, Senator Schumer indicated that the word 'privy,' in the context of § 18 of the AIA, 'effectively means customers of the petitioner.' Thus, for example, the fact that Ford has been sued for infringement of [the challenged patent] does not thereby confer standing on every privy, or customer, of Ford to file a request for a covered business method patent review. Under the applicable statute and rules . . . in order to confer standing on [petitioner], the party sued must be a privy of [petitioner], not the converse. . . .[W]e determine that the information presented in the Petition does not establish that [petitioner] had standing to file the Petition or to be named as a Petitioner."

Petition for Covered Business Method Patent Review by Acxiom Corporation, CBM2015-00068 (PTAB August 11, 2015, Order) (Grossman, APJ)