# United States Court of Appeals

f or the Fifth Circuit

No. 21

- 40601

US Inventor Incorporated; Tinnus Enterprises, L.L.C.; 360 Heros, Incorporated; Ramzi Maalouf ; Larry Golden; World Source Enterprises, L.L.C.; E

- Watch, Incorporated, Plaintiffs

— Appellants ,

versus Katherine K. Vidal, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Defendant

— Appellee

.
Appeal from the United States District Court for the Eastern District of Texas USDC No. 2:21

- CV

- 47

Before King, Elrod, and Southwick, Circuit Judges

. Per Curiam : *

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED September 30, 2022 Lyle W. Cayce Clerk Case: 21-40601 Document: 00516492204 Page: 1 Date Filed: 09/30/20222 P laintiff

- A ppellants appeal the district court’s judgment dismissing their suit for lack of standing. We affirm the judgment of the district court

. I. In 2011, Congress passed the America Invents Act (“AIA”). The AIA established an executive adjudicatory body called the Patent Trial and Appeal Board (“PTAB”) within the U.S. Patent and Trademark Office (“PTO”). 35 U.S.C. § 6(a). The AIA creates a variety of avenues for patent challengers to contest the validity of a patent before the PTAB. Notable for this case are two such avenues: inter partes review (“IPR”) and post

- grant review (“PGR”). See id. § 6(c). IPRs and PGRs both have two phases: an institution phase and a trial phase. The institution phase’s purpose is for the PTAB to det ermine whether it should institute a trial on the merits. During an IPR, the patent challenger must demonstrate “that there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition.” I

d. § 314(a). During a PGR, the patent challenger must demonstrate “ that it is more likely than not that at least 1 of the claims challenged in the petition is unpatentable.” Id. § 324(a). If such showings are not met, the PTAB must deny institution and the proceeding ends there. Id. §§ 314(a) , 324(a). Even if the patent challenger does make the statutory showing, the PTAB may still choose not to institute a trial. This is so becaus e , under S ections 314(a) and 324(a), “the agency’s decision to deny a petition is a matter committed to the Patent Office’s discretion.” Cuozzo Speed Techs., LLC v. Lee , 579 U.S. 261, 273 (2016) (regarding IPRs); Credit Acceptance Corp. v. Westlake Servs. , 859 F.3d 1044, 1049 (Fed. Cir. 2017) (regarding PGRs). That said, the PTAB’s discretion is cabined by Congress, which require s that “[t]he [PTO] Director shall prescribe regulations

. . . setting Case: 21-40601 Document: 00516492204 Page: 2 Date Filed: 09/30/2022No. 21

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3 forth the standards for the showing of sufficient grounds t o institute” or deny either an IPR or PGR trial. See 35 U.S.C. §§ 316(a)(2) , 326(a)(2). Since the AIA was passed , PTAB panels have examined when “discretionary denials” are appropriate and have adopted a nonexclusive list of factors f

or consideration. See Gen. Plastic Indus. Co. v. Canon Kabushiki Kaisha , No. IPR2016

- 01357 , 2017 WL 3917706 (P.T.A.B. Sept. 6, 2017); NHK Spring Co. v. Intri

- Plex Techs., Inc. , No. IPR2018

- 00752, 2018 WL 4373643 (P.T.A.B. Sept. 12, 2018); Advanced Bionics, LLC v. MED

- EL Elektr omedizinische Geräte GmbH , No. IPR2019

- 01469 , 2020 WL 740292 (P.T.A.B. Feb. 13, 2020); Apple Inc. v. Fintiv, Inc. , No. IPR2020

- 00019 , 2020 WL 2126495 (P.T.A.B. Mar. 20, 2020). The d irector of the PT O (the “Director”) has designated these decisions “precedential” in the PTAB’s Standard Operating Procedure, meaning that these decisions are “binding Board authority in subsequent matters involving similar facts and issues.” PTAB, S tandard O perating P rocedure 2 ( Revision 10 ) , at 11 ( 2018 ) , https://www.uspto.gov/sites/default/files/documents/SOP2%20R 10%20FINAL.pdf

. This brings us to the instant case. Plaintiff

- App ellant s comprise several individual patent holders and US Inventor Incorporated (“US Inventor”), an organization r epresenting patent holder interests . As beneficiaries of discretionary denials (because such denials avoid potentially costly IPRs or PGRs ), Plaintiff

- App ellant s desire additional “offramps” to avoid PTAB trials. Consequently , they brought a two

- count suit seeking a preliminary and permanent injunction against the Director. First, they argued that S ections 316(a) and 326(a) mandate that the Director engage in notice

- and

- comment rulemaking and , thus , that the Director must go through the Administrative Procedure Act’s (“APA’s”) notice

- and

comment process to issue standards for when discretionary denial is appropriate. Therefore , they requested that the district court compel the Case: 21-40601 Document: 00516492204 Page: 3 Date Filed: 09/30/2022No. 21

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4 Director to engage in notice

- and

- comment rulemaking when issuing discretionary denials. Second, they asserted that the issuance of the Standard Operating Procedure reflect ed that the Director engag ed in rulemaking without notice and comment, and thus the Standard Operating Procedure must be set aside as unlawful. The Plaintiff

- App ellant s further sought a preliminary and permanent injunction enjoining the Director from granting institution in any AIA patent trial pending completion of the compelled rulemaking.
The Director moved to d ismiss the complaint, arguing that the plaintiffs lacked individual or organizational standing. The district court agreed and dismissed the complaint. The court explained that the individual plaintiffs could not show a legally cognizable injury because th eir alleged injury

— the potential increased risk to their patents if they do not receive a discretionary denial during the institution stage

— was not sufficiently
concrete. Additionally, t he court found no organizational standing under either of US Inventor ’s proffered theories b ecause it (1) could not show that the purported actions (or inactions) of the Director caused the organization to expend resources beyond its normal expenditures and (2) did not suffer an informational injury because it was not denie d any particular information to which it was entitled.
Plaintiff

- App ellant s timely appealed the decision to both this circuit and the Federal Circuit. The appeal in the Federal Circuit is being held in abeyance pending this court’s decision.
II. Before p roceeding to the standing analysis , we first note that there are
two independently necessary requirements of subject matter jurisdiction.

“ Federal courts are courts of limited jurisdiction ,” and we “ possess only that power authorized by Constitution and statute

. ” Kokkonen v. Guardian Life Case: 21-40601 Document: 00516492204 Page: 4 Date Filed: 09/30/2022No. 21

- 40601

5 Ins. Co. of Am. , 511 U.S. 375, 377 (1994). In other words, c onstitutional and statutory authorizations are both necessary requirements for us to have subject matter jurisdiction to hear a case. See Steel Co. v. Citizens for a Better Env ’ t , 523 U.S. 83, 89 (1998); Erwin Chemerinsky, Federal Jurisdiction 300 (8th ed. 2020)

. This appeal implicates both such requirements. In disputing the district court’s dismissal for lack of Article III standing, parties disagree on whether we have the constitutional authority to decide this instant dispute as part of our jurisdiction over “ C ases” and “ C ontroversies.” U.S. Const.
art

. III, § 2, cl

. 1

. And separately, parties dispute whether we have the
st atutory authority to hear this cas e without transferring it to the Federal Circuit, which has exclusive appellate jurisdiction over appeals “arising under

. . . any Act of Congress relating to patents .” 28 U.S.C. § 1295(a)(1)

. T o exercise jurisdiction over this case, we would need to be satisfied that both the constitutional and statutory requirements of subject matter jurisdiction are met. For the reasons below, we agree with the district court that P laintiff

- A ppellants are without Article III standing. We thus hold that
t he district court lacked subject matter jurisdiction due to an absence of constitutional authorization

. See Bender v. Williamsport Area Sch. Dist. , 475 U.S. 534 , 541 (1986) (citing United States v. Corrick , 298 U.S. 435, 440 ( 1936)) (requiring us to confirm the district court’s jurisdiction)

. Because such an absence precludes jurisdiction , even in the face of clear statutory authority , we do not reach the question of whether we are statutorily allowed to hear (or transfer) this case

. A. Plaintiff

- App ellant s assert a variety of standing theories. First, they argue that certain plaintiffs have individual standing. This court “review [s] a dismissal for lack of Article III standing de novo.” Abraugh v. Alti mus , 26 Case: 21-40601 Document: 00516492204 Page: 5 Date Filed: 09/30/2022No. 21

- 40601

6 F.4th 298, 302 (5th Cir. 2022 ). To have Article III standing, a plaintiff must demonstrate that he or she “ (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redress ed by a favorable judicial decision .” Gill v. Whitford , 138 S. Ct. 1916, 1929 (2018) (quoting Spokeo, Inc. v. Robins , 578 U.S. 330, 338 (2016))

. To show an injury in fact, a p laintiff must also establish that the injury is “ (a) concrete and particularized ” and “ (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defs. of Wildlife , 504 U.S. 555, 560 (1992) ( internal quotation marks and citations omitted ). Although a concrete injury may be imminent when derived from the failure o f an agency to engage in notice

- and

- comment rulemaking, s ee Massachusetts v. EPA , 549 U.S. 497, 521

– 22 (2007) , mere probability of a disfavored outcome does not suffice to create a legally cognizable injury , Ctr. for Biological Diversity v. EPA , 937 F.3d 5 33, 538

– 39 (5th Cir. 2019)

. Instead, t he injury itself must be certainly impending , not speculative. See Texas v. United States , 787 F.3d 733, 747

– 48 (5th Cir. 2015) ( citing Clapper v. Amnesty Int’l USA , 568 U.S. 398, 409 (2013)). Here, Plaintiff

- Appellant s allege a risk of future harm , which can be a legally cognizable injury if “sufficiently imminent and substantial.” TransUnion LLC v. Ramirez , 141 S. Ct. 2190 , 2210 (2021)

. Specifically, Plaintiff

- App ellant s are concerned with the increased risk 1 of patent invalidation arising out of the absence of their notice and opportunity to comment on the Director’s relevant (i.e., related to discretionary denials) modifications to the Standard Operating Procedu re
. A p atentee ’s property rights in his or her patents are legally protected interests, and invalidation

1 The theory Plaintiff

- Appellants posit is that the risk of a patent being invalidat ed is higher in an (1) IPR or PGR versus (2) a district court proceeding. Case: 21-40601 Document: 00516492204 Page: 6 Date Filed: 09/30/2022No. 21

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7 would upset these interests. See , e.g. , Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. , 535 U.S. 722, 730 (2002) (stating patents are property rights).
But it is not clear that invalidation is imminent here for Plaintiff

App ellant s
. Instead, such a purported injury is too speculative to create standing . For the original procedural deficiency ( Plaintiff

- App ellant s ’ lack of notice and opportunity to comment ) to result in the stated harm (an increased risk of invalidation compared to a district court challenge ) , the following series of events must occur : (1) a third party must challenge one of Plaintiff

- App ellant s’ pat ents ; (2) after a challenge occurs, the challenger must prove that he or she is likely to succeed at blocking issuance of or invalidating a patent ; 2 (3) the PTAB must decide whether to apply the
current discretionary denial factors to that patent ; 3 (4) the PTAB must not exercise its discretionary denial ; and (5) the resulting IPR or PGR proceeding must create a significantly higher likelihood 4 (i.e., increased risk of harm) of invalidation as compared to a district court proceeding.

2 See 35 U.S.C. §§ 314(a) ( regarding IPR s ) , 324(a) ( regarding PGR s )

.
3 See Cuozzo Speed Techs., LLC v. Lee , 579 U.S. 261, 273 (2016) (regarding IPRs); Credit Acceptance Corp. v. Wes tlake Servs. , 859 F.3d 1044, 1049 (Fed. Cir. 2017) (regarding PGRs).

4 Plaintiff

- Appellants make much of the higher invalidity rate in IPR and PGR proceedings (84%) as opposed to that in Article III proceedings (29%). Our summary of the steps leading up to an IPR or PGR underscores our hesitancy in relying too closely on these invalidity rate statistics to support a finding of increased risk of harm. For a challenger to even make it to an IPR or PGR, he or she must show a likelihood of success before the PTAB, which must then decide not to exercise a discretionary denial. B ringing a successful challenge in the district court is different . A challenger in district court does not need to initially show a likelihood of succ ess, and the success of such a challenge also does not depend on the PTAB’s discretionary denials. We note such differences only to say that simply comparing patent challenges in an IPR/PGR to challenges in a district court is likely an apples

- to

- oranges c omparison that fails to meet the rigor we expect in a standing analysis. Case: 21-40601 Document: 00516492204 Page: 7 Date Filed: 09/30/2022No. 21

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8 N on
- occurrence of a single event in this series breaks the chain of causation between the alleged procedural failing and resulting harm

. And none of these events i s guaranteed to occur , as each event is an outcome dependent on the specific choices made by independent parties (e.g., a challenger seeking IPR choosing how to present evidence when arguing for a likelihood of success). Plaintiff

- App ellant s have some dire ct knowledge of and control over their own choices in this series of events, but they must necessarily speculate and make assumptions about how other independent parties (e.g., challengers, the PTAB) will act.
T he Supreme Court rejected standing premised on such a

“ speculative chain of possibilities” in Clapper , 568 U.S. at 414. In that case , t he plaintiffs challenged a new Government surveillance program and alleged injury from the Government’s interception of plaintiffs’ communications with foreign contacts. See id. at 404

– 07. The Court held that plaintiffs lacked standing because connecting the injury (the interception of communications) with the proffered cause (the new progra m) involved speculating how the Government and Article III judges would act in a “chain of possibilities,” namely the complex series of events needed for the Government to actually surveil plaintiffs

. 5 See id. at 410. Such speculation meant that the resu lting

5 Specifically, the Court outlined as insufficiently imminent the speculative fear that: (1) the Government will decide to target the communications of non

- U.S. persons with whom the y communicate; (2) in doing so, the Government will choose to invoke its authority under § 1881a rather than utilizing another method of surveillance; (3) the Article III judges who serve on the Foreign Intelligence Surveillance Court will conclude that th e Government’s proposed surveillance procedures satisfy § 1881a’s many safeguards and are consistent with the Fourth Amendment; (4) the Government will succeed in intercepting the communications of respondents’ contacts; and (5) respondents will be parties to the particular communications that the Government intercepts. Case: 21-40601 Document: 00516492204 Page: 8 Date Filed: 09/30/2022No. 21

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9 injury to plaintiffs was not “certainly impending” to constitute an injury in fact despite an “objectively reasonable likelihood” o f plaintiffs ’ communications being intercepted

. See id

. T his case presents a similar chain of events requiring us to speculate

— at minimum

— whether a (1) third

- party challenge will occur; (2) how the PTAB would rule on the challenged portions of the relevant patents; (3) how the PTAB would consider its discretionary denial factors in (4) not exercising discretionary denial; and (5) how a district court would otherwise rule on the patent claims at issue. Thus, to clearly connect Plaintiff

App ellant s ’ procedural harm to the ir injury, we must engage in conjecture about how independent third part ies, i.e., the PTAB and a district court , would act. Clapper rejected such conjectures as speculation insufficient to support a redressable injury. See id. We follow the Court and hold that Plaintiff

- Appellants’ similarly speculative theory of injury precl udes their ability to establish individual standing

. 6
Plaintiff

- A ppellant s’ arguments to the contrary are unavailing. They contend their injury is like those in Sierra Club v. Marsh , 872 F.2d 497 , 503 (1st Cir. 1989); TransUnion , 141 S. Ct. at 2210 ; Massachusetts v. EPA , 549 U.S. at 522

– 26; and City of Dania Beach v. FAA , 485 F.3d 1181 , 1186 (D.C. Cir. 2007). But in all those cases, and unlike that of Plaintiff

- Appellants ’, the injur ies were actual and imminent ; they did not require speculation. See S ierra Club , 872 F.2d at 498

– 99 (planned construction of a marine dry cargo terminal would clear 124 acres of wildland); TransUnion , 141 S. Ct at 2209

Clapper , 568 U.S. at 410.

6 This lack of individual standing also defeats any claim to associational standing. See Hunt v. Wash

. State Apple Advert. Comm’n , 432 U.S. 333, 343 (1977) (holdin g that an association’s members must “otherwise have standing to sue in their own right” to have associational standing). Case: 21-40601 Document: 00516492204 Page: 9 Date Filed: 09/30/2022No. 21

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10 (misleading OFAC alerts actually placed into plaintiffs’ credit reports sent to third parties); Massachuse tts , 549 U.S. at 521

– 22 (coastlines were already receding and would recede further); Dania Beach , 485 F.3d at 118 5

– 8 6 (new regulations would route more jets into neighborhood and thus increase noise, soot, and exhaust fumes). 7 Given the specific, uncertai n series of events required under Plaintiff

- Appellants’ theory of harm , we find their injury more closely analogous to the impermissibly speculative theory of injury rejected in Clapper

. Plaintiff

- A ppellant s also argue that the district court should have assumed a plaintiff victory on the merits when considering standing. This would require us to assume that the Director acted unlawfully in evading notice

- and

- comment rulemaking on discretionary denial off

- ramps and that lawful rulemaking would provide better off

- ramps for patentees to avoid IPR and PGR. But even if we assume this to be true , we must still make a series of improperly speculative assumptions

. Assuming different standards for discretionary denials does not affect how third part ies and district courts would act on certain patents (e.g., by challenging or invalidating them) ; furthermore, the role of the PTAB elsewhere in the chain of events , e.g., in considering challenged portions of the patents, would r emain unaffected. Thus, assuming Plaintiff

- App ellant s ’ win on the merits and positing un lawful rulemaking cannot overcome the lack of imminency defeating Plaintiff

App ellant s’ individual standing claims

. 8

7 Moreover, to the extent the Plaintiff

- A ppellants cite similarities to Lujan and Summers v. Earth Island Institute , they ignore that in both of those cases, the plaintiffs lacked standing because their injuries were too speculative. Lujan , 504 U.S. at 578; Summers v. Earth Island Inst. , 555 U.S. 488, 496

– 97 (2009).

8 Plaintiff

- Appellants make two other arguments that we address briefly here. First, a district court case P laintiff

- A ppellants cite, Apple Inc. v. Iancu , No. 20

- CV

- 06128 , 2021 WL 5232241 (N.D. Cal. Nov. 1 0 , 2021) , is not binding on us, and, in any event, is Case: 21-40601 Document: 00516492204 Page: 10 Date Filed: 09/30/2022No. 21

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11 B. Next, Plaintiff

- App ellant s argue that US Inven tor has organizational standing. An organization seeking standing must meet the same standing requirements governing individual standing , NAACP v. City of Kyle , 626 F.3d 233, 237 (5th Cir. 2010) , and we again review this issue de novo. Abraugh , 26 F.4th at 302. Plaintiff

- App ellant s present two theories of injury , and w e address each in turn.
Plaintiff

- App ellant s first assert that they have organizational standing under a theory of resource diversion. Under this theory, an organization has a cog nizable injury if it exerts resources to counteract effects of an unlawful action by the G overnment

. See OCA

- Greater Hous. v. Texas , 867 F.3d 604, 61 0

– 12 (5th Cir. 2017)

. Although the injury need only be an “identifiable trifle , ” Ass’n of Cmty. Orgs

. for Reform Now v. Fowler , 178 F.3d 350, 35 8 (5th Cir. 1999) (citation omitted) , it must nevertheless perceptibly impair the organization’s ability to provide its activities , City of Kyle , 626 F.3d at 238

. Uninterrupted operations or a “redirect [ion] ” of r esources towards litigation and legal counseling are insufficient. La. ACORN Fair Hous. v. LeBlanc , 211 F.3d 298, 305 (5th Cir. 2000 ) (citation omitted)

. Two cases primarily guide our analysis here. In OCA

- Greater Houston , the plaintiff non

- profit successfully demonstrated a redressable injury in its challenge to a Texas voting law imposing a restriction on interpretation

distinguishable as involving the standing of materially different par ties (namely, patent challengers ) who already had specific suits dismissed due to certain discretionary denial factors allegedly applied unlawfully. Id. at *4. Second, P laintiff

- A ppellant s ’ argument that an individual plaintiff, Ramzi Maalouf, has standing under a slightly different theory is also unavailing. The requested relief here, prospective invalidation of the factors and a requirement to engage in rulemaking, would not redress his injury for future patents. See City of L

. A

. v. Lyons , 461 U.S. 95, 105

– 06 (1983) (plaintiff has no stan ding to challenge future injuries absent immediate, specific threat of future injury). Case: 21-40601 Document: 00516492204 Page: 11 Date Filed: 09/30/2022No. 21

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12 assistance for English

- limited voters. OCA

- Greater Hous

. , 867 F.3d at 606

– 07. The court held that OCA

- Greater Houston was injured by having to exhaust “additional time and effort . . . explaining the Texas provisions at issue to limited English proficient voters [because] addressing the challenged provisions frustrate[d] and complicate[d] its routine commu nity outreach activities.” OCA

- Greater Hous

. , 867 F.3d at 610 (emphasis added). By
contrast , routine lobbying behavior did not suffice to create standing in City of Kyle , 626 F.3d at 238

– 39. In City of Kyle , the plaintiffs could not show an injury when its prelitigation actions involved only lobbying against a set of challenged ordinances and engaging in a “$15,000 study on the impact of the revised ordinances” because these were part of the routine operations of the lobbying organization. See id

. at 238. R eading these cases together, we must thus consider whether US Inventor’s proffered expenditures are more similar to the additional expenditures at issue in OCA

- Greater Houston or the ordinary, routine expenditures in City of Kyle

. We begin with a summary o f US Inventor ’s activities and its purported expenditures. US Inventor engages in lobbying , and states that “part of its educational mission [is to]

. . . provide[ ] information to its membership to help them deal with potential AIA trial reviews,” which it does by “educat[ing] the public by providing information about the factors that will lead to a grant, versus a denial, of institution of AIA trials, particularly on discretionary factors.” Plaintiff

- Appellants suggest that US Inventor suffered injury by expending resources to respond to the Director’s issuance of the Standard Operating Procedure without notice and comment

. They argue that US Inventor “needed to co nsume time and resources that would not otherwise be spent had there been lawful promulgation of notice and comment regulations” because it took additional time to educate its membership about AIA trial reviews and made US Inventor give advice against the patenting of certain inventions. Case: 21-40601 Document: 00516492204 Page: 12 Date Filed: 09/30/2022No. 21

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13 Against this general backdrop, Plaintiff

- Appellant s point to three particular endeavors as their expending additional resources in response to the Director’ s flawed issuance of the Standard Operating Procedure . First, US Inventor “dedicated website resources and personnel time to creating a portal for inventors to deliver their opinions to the Director on their yearning for certainty in institution phase discretionary decisions, and for notice

- and

comment rules.” This port al includes a pre

- written series of requests that a user is to copy and paste on the Federal Register website to consider in the PTO’s Request for Comments on Discretion to Institute Trials before the Patent Trial and Appeal Board. Submit Comments to the U SPTO , US Inventor , https://usinventor.org/ptabcomments (last visited Sept. 12, 2022). Second, a US Inventor fellow issued commentary about the current discretionary rules. And third, US Inventor petitioned for notice

- and

comment rulemaking.
T hese endeavo rs by Plaintiff

- Appellants reflect US Inventor’s routine operations as a lobbying and educational group. Their endeavors are dissimilar from the organizational resources expended in OCA

- Greater Houston and more akin to the expenditures in City of Kyle. In OCA

- Greater Houston , the plaintiff ’s expended efforts constituted more than “routine” community outreach activities. OCA

- Greater Hous

. , 867 F.3d at 610. But here, a ll of Plaintiff

- Appellants’ endeavors reflect US Inventor’s routine operations as a lobbying and educational group . Its web portal is an educational and lobbying tool encourag ing the PTO to adopt rules in its favor, as is its petition for rulemaking. Similarly, while it is true that US Inventor’s publications offered potentially di fferent information from what they would contain had there been notice

- and

- comment rulemaking, this does not reflect a change in its routine practice of educating its members “by providing information about the factors that will lead to a grant, versus a d enial, of institution of AIA trials.” Thus, like the plaintiffs in City of Kyle , Plaintiff

Case: 21-40601 Document: 00516492204 Page: 13 Date Filed: 09/30/2022No. 21

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14 App ellant s have not shown how their specified activities actually differ from US Inventor’s routine operation s or how the Director’s alleged failure to promulgate r ulemaking has caused US Inventor to depart from its ordinary activities. See City of Kyle , 626 F.3d at 238 (“Plaintiffs have not explained how the activities described above, which basically boil down to examining and communicating about developments in lo cal zoning and subdivision ordinances, differ from the HBA’s routine lobbying activities.”). 9 Therefore, US Inventor has not suffered an injury

- in

- fact under a resource diversion theory because it has not expended resources outside of its ordinary course of operations.
Plaintiff

- App ellant s next claim they have organizational standing based on an informational injury. An informational injury occurs if a plaintiff

9 This is also what renders US Inventor’s situation distinct from the Avian Welfare Coalition ’s (the “AWC”) in American Anti

- Vivisection Society v. United States Departm ent of Agriculture , 946 F.3d 615 (D.C. Cir. 2020). That case involved a 2002 amendment to the Animal Welfare Act that required the USDA to pass general standards regarding the “humane handling, care, treatment, and transport ation of animals.” Id. at 617 (q uoting 7 U.S.C. § 2143(a)(1)). The USDA never did, and so the Avian Welfare Coalition, whose “mission is to protect and raise awareness about the plight of captive birds,” brought suit against the USDA seeking to compel rulemaking. Id. at 618

- 19. The AWC e xplained that, ordinarily, it would rely on the USDA’s publication of information to educate the public on humane treatment, but due to the USDA’s failure, the AWC was forced to develop how

to guides, webinars, and informational pamphlets that “were not pa rt of” its “normal annual expenditures,” which the court held was sufficient to establish an injury. Id. at 619. While AWC’s predicament is similar to US Inventor’s plight

— both were engaged in the publication of information that would not have occurred ha d the relevant agency engaged in notice

- and

- comment rulemaking

— US Inventor has not actually engaged in a practice outside of its ordinary scope. It educates the public “by providing information about the factors” considered by the PTAB, whether the Directo r adopts those factors with public comment or through ad hoc decisions. The AWC, having no guidance, instead had to research and create its own standards of care when it would ordinarily engage in what US Inventor is currently doing

— that is, educating and commenting on the standards that have been passed. These two cases are thus distinguishable. Case: 21-40601 Document: 00516492204 Page: 14 Date Filed: 09/30/2022No. 21

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15 fails to obtain information that must be publicly disclosed pursuant to a
statute. Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co. , 704 F.3d 413, 429

– 30 (5th Cir. 2013). Plaintiff

- App ellant s argue that notice

- and

- comment rulemaking is statutorily compelled information that US Inventor was denied.
Courts that have faced this issue hav e agreed that a failure to issue notice

- and

- comment rulemaking does not create a right to information for the purpose of standing. 10 Bensman v. U.S. Forest Serv. , 408 F.3d 945, 958

– 60 (7th Cir. 2005) (distinguishing laws that create a notice

- and

- comment

r ulemaking requirement from laws that create a specific right to information); Wilderness Soc’y, Inc. v. Rey , 622 F.3d 1251, 1259 (9th Cir. 2010) (agreeing with the Seventh Circuit and explaining that a notice

- and

comment mandate’s purpose is not to disclos e information). We agree with their logic. As explained by the Seventh Circuit in Bensman , an informational injury can arise from a statute (such as FOIA or FACA) that aims to provide information to the public and then clearly creates a right to such infor mation. Bensman , 408 F.3d at 958. When a statute serves some other purpose, such as increasing public participation in the decision

- making process, there is no public right to information

. Id. ; see also Wilderness Soc ’y , 622 F.3d at 1260 (explaining that allowing any procedural injury that results in the plaintiff experiencing informational harm to create a concrete injury “would allow an

10 Plaintiff

- Appellants also refer to American Anti

- Vivisection Society as a case involving an informational injury. However, “informational injury” refers to a nar rower subset of injuries where the injury is the denial of information itself. By contrast, American Anti

- Vivisection Society involved a monetary injury arising from resource expenditures due to a failure to pass notice

- and

- comment regulations. See America n Anti

- Vivisection Society , 946 F.3d at 619 (“ These activities, which were not part of [AWC’s] normal annual expenditures until the efforts became necessary due to USDA ’ s clear inaction, have caused a consequent drain on the organization ’ s resources
. ” (int ernal quotations and citation omitted)). Case: 21-40601 Document: 00516492204 Page: 15 Date Filed: 09/30/2022No. 21

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16 end run around the Supreme Court’s procedural injury doctrine and render its direct ion in Summers meaningless”). The provisions that Plaintiff

App ellant s allege create a right to information read only that the Director “shall prescribe regulations

. . . setting forth the standards for the showing of sufficient grounds to institute a revi ew.” 35 U.S.C. §§ 316(a)(2) , 326(a)(2). Assuming arguendo that this provision does create a notice

- and

- comment requirement, the purpose of the statute is to create regulations around the PTAB review process with public comment

— it is not to create a public right to any particular information. Thus, the statutes do not form the basis for an informational injury. In sum, Plaintiff

- App ellant s do not meet the requirements for Article III standing under any of their proffered theories

. T he district court thus

cor rectly dismissed the case for lack of subject matter jurisdiction.
III. For the foregoing reasons, we AFFIRM

. Case: 21-40601 Document: 00516492204 Page: 16 Date Filed: 09/30/2022