Us Inventor, Inc., Inventor’s Association of South Central Kansas, Inventors Network… v. John A. Squires, Under Secretary of Commerce for Intellectual Property

United States Court of Appeals
for the Federal Circuit
______________________
US INVENTOR, INC., INVENTOR’S ASSOCIATION
OF SOUTH CENTRAL KANSAS, INVENTORS
NETWORK OF MINNESOTA, SAN DIEGO
INVENTORS FORUM, INC., MERCEXCHANGE,
L.L.C., PAUL MORINVILLE,
Plaintiffs-Appellants
v.
JOHN A. SQUIRES, UNDER SECRETARY OF
COMMERCE FOR INTELLECTUAL PROPERTY
AND DIRECTOR OF THE UNITED STATES
PATENT AND TRADEMARK OFFICE, UNITED
STATES PATENT AND TRADEMARK OFFICE,
Defendants-Appellees
______________________
2024-2378
______________________
Appeal from the United States District Court for the
Eastern District of Virginia in No. 1:24-cv-00708-PTG-
LRV, Judge Patricia T. Giles.
______________________
Decided: August 21, 2026
______________________
AMANDA L'ESPERANCE , Prince Lobel Tye LLP, Boston,
MA, argued for plaintiffs-appellants. Also represented by
S TEVEN R. D ANIELS , Austin, TX.
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US INVENTOR, INC. v. SQUIRES 2
WEILI J. SHAW , Appellate Staff, Civil Division, United
States Department of Justice, Washington, DC, argued for
defendants-appellees. Also represented by YAAKOV R OTH ;
MICHAEL S. F ORMAN, F AHD H. P ATEL , Office of the Solicitor,
United States Patent and Trademark Office, Alexandria,
VA.
______________________
Before M OORE, Chief Judge, CUNNINGHAM , Circuit Judge,
and K OVNER , District Judge.1
K OVNER , District Judge.
Inventor-advocacy groups sued the Patent and Trade-
mark Office (“PTO”), contending that certain language on
the cover of patents issued to inventors is misleading. We
decide whether they have standing to bring their claims.
They do not.
I
The Constitution empowers Congress to authorize pa-
tents. “To promote the Progress of Science and useful
Arts,” Congress may “secur[e] for limited Times to Authors
and Inventors the exclusive Right to their respective Writ-
ings and Discoveries.” U.S. CONST . art. I § 8, cl. 8. The
First Congress evidently agreed with James Madison that
the “utility” of this system could “scarcely be questioned,”
see The Federalist No. 43, at 271 (Clinton Rossiter ed.,
1961), as it passed the first patent act within a year of rat-
ification, see Act of Apr. 10, 1790, ch. 7, 1 Stat. 109.
In its current form, the Patent Act requires patents to
contain “a grant to the patentee, his heirs or assigns, of the
right to exclude others from making, using, offering for
1 Honorable Rachel P. Kovner, District Judge,
United States District Court for the Eastern District of
New York, sitting by designation.
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US INVENTOR, INC. v. SQUIRES 3
sale, or selling the invention throughout the United States
or importing the invention into the United States.” 35
U.S.C. § 154(a)(1).
Tracking the statute, the PTO states on the cover of
every newly issued patent that the patent
grants to the person(s) having title to this pa-
tent the right to exclude others from making,
using, offering for sale, or selling the inven-
tion throughout the United States of America
or importing the invention into the United
States of America . . .
Compl. ¶ 28.
Several patent-related non-profits and patent-holders
sued the PTO and its acting director, challenging that lan-
guage as misleading. The three plaintiffs whose standing
appellants continue to defend on appeal are inventor-advo-
cacy groups. Appellant US Inventor is a non-profit that
“advocates for and educates independent inventors, small
businesses, and startups on patent-related matters.” Id.
¶ 5. It “publishes commentary on topics relevant to its
members’ patent interests and petitions for rulemaking on
behalf of its members.” Ibid. Appellant Inventor’s Associ-
ation of South Central Kansas is a non-profit that “sup-
ports and educates inventors in developing and protecting
their inventions.” Id. ¶ 10. And Appellant Inventors Net-
work of Minnesota is a non-profit that “aims to help early-
stage product developers and inventors” “through the pro-
cess of bringing their ideas to market.” Id. ¶ 11. For con-
venience, those groups are referred to herein as
“appellants.” (Three additional plaintiffs make no argu-
ments to defend their standing at this stage.)
Appellants’ core claim is that the patent cover language
“assur[ing] the patent owner [of] the ‘right to exclude,’” id.
¶ 30, is inaccurate as a result of the Supreme Court’s deci-
sion in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388
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US INVENTOR, INC. v. SQUIRES 4
(2006). Before eBay, the “general rule” in the Federal Cir-
cuit was that the holder of a valid patent would automati-
cally obtain a permanent injunction against infringers,
absent “sufficiently exceptional” circumstances that sug-
gested an injunction would not be in the public interest.
MercExchange, LLC v. eBay, Inc., 401 F.3d 1323, 1338–39
(Fed. Cir. 2005), vacated and remanded sub nom. eBay Inc.
v. MercExchange, L.L.C., 547 U.S. 388 (2006). After eBay,
that is no longer the case. Now, courts use the “four-factor
test historically employed by courts of equity” to determine
if a patent-holder is entitled to a permanent injunction.
547 U.S. at 390. That test requires a plaintiff to demon-
strate “(1) that it has suffered an irreparable injury;
(2) that remedies available at law, such as monetary dam-
ages, are inadequate to compensate for that injury;
(3) that, considering the balance of hardships between the
plaintiff and defendant, a remedy in equity is warranted;
and (4) that the public interest would not be disserved by a
permanent injunction.” Id. at 391.
In appellants’ view, this test “has eliminated the patent
owner’s ‘right to exclude,’” Compl. ¶ 40, which is “no longer
a guarantee or an absolute right of the patent owner,” id.
¶ 37. As a result, appellants argue, the language on patent
cover letters “does not comport with the current law.” Id.
¶¶ 41–43.
To remedy this, appellants filed a lawsuit against the
PTO and its acting director seeking declaratory and injunc-
tive relief under the Administrative Procedure Act (“APA”),
5 U.S.C. § 701 et seq. They allege that the PTO unlawfully
withheld or unreasonably delayed rulemaking by failing to
amend the patent cover language in light of eBay, “despite
rulemaking petitions alerting the Director to the injurious
results of this inaction.” Compl. ¶¶ 51–56 (Count I). They
further allege that the PTO’s continued use of the existing
cover language constitutes arbitrary and capricious agency
action, id. ¶¶ 57–62 (Count II), and action exceeding the
agency’s statutory jurisdiction, authority, or limitations,
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US INVENTOR, INC. v. SQUIRES 5
id. ¶¶ 63–68 (Count III). As relief, they ask the court to
compel the PTO to engage in notice-and-comment rulemak-
ing to change the cover language and to enjoin the PTO
from “making representations of an unequivocal right to
exclude on the cover of a granted patent.” Id. at 16. They
also ask the court to declare the current language unlaw-
ful. Ibid.
On appellees’ motion, the district court dismissed the
complaint for lack of standing. The court also concluded
that any attempt to amend the complaint would be futile,
so it declined to grant leave to amend. Appellants timely
appealed.
II
This Court applies regional circuit law to its “review of
a dismissal of a complaint for lack of standing unless the
issue is unique to patent law and therefore exclusively as-
signed to the Federal Circuit.” Univ. of S. Fla. Rsch.
Found., Inc. v. Fujifilm Med. Sys. U.S.A., Inc., 19 F.4th
1315, 1323 (Fed. Cir. 2021). Both this Circuit and the re-
gional circuit here—the Fourth—review dismissals for lack
of standing de novo. Fairholme Funds, Inc. v. United
States, 26 F.4th 1274, 1284 (Fed. Cir. 2022); Kenny v. Wil-
son, 885 F.3d 280, 287 (4th Cir. 2018).
The law of the regional circuit governs review of a dis-
trict court’s denial of leave to amend. Simio, LLC v.
FlexSim Software Prods., Inc., 983 F.3d 1353, 1358 (Fed.
Cir. 2020). The Fourth Circuit reviews a denial of leave to
amend for abuse of discretion. United States ex rel. Nichol-
son v. MedCom Carolinas, Inc., 42 F.4th 185, 197 (4th Cir.
2022).
III
Appellants have not adequately pleaded a threat of fu-
ture injury from the conduct that they challenge. They
have therefore failed to establish standing to seek injunc-
tive and declaratory relief.
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US INVENTOR, INC. v. SQUIRES 6
Article III of the Constitution limits the jurisdiction of
federal courts to “Cases” and “Controversies.” This limita-
tion ensures that federal courts only review “executive ac-
tions when necessary ‘to redress or prevent actual or
imminently threatened injury to persons caused by . . . of-
ficial violation of law.’” Murthy v. Missouri, 603 U.S. 43,
56–57 (2024) (quoting Summers v. Earth Island Inst., 555
U.S. 488, 492 (2009)). “Except when necessary in the exe-
cution of that function, courts have no charter to review
and revise . . . executive action.” Summers, 555 U.S. at
492. These principles prevent the judicial power from be-
ing converted “into ‘no more than a vehicle for the vindica-
tion of the value interests of concerned bystanders.’” Valley
Forge Christian Coll. v. Ams. United for Separation of
Church & State, Inc., 454 U.S. 464, 473 (1982) (quoting
United States v. SCRAP, 412 U.S. 669, 687 (1973)).
When a plaintiff seeks injunctive relief, he “must show
that he is under threat of suffering ‘injury in fact’ that is
concrete and particularized; the threat must be actual and
imminent, not conjectural or hypothetical; it must be fairly
traceable to the challenged action of the defendant; and it
must be likely that a favorable judicial decision will pre-
vent or redress the injury.” Summers, 555 U.S. at 493 (cit-
ing Friends of Earth, Inc. v. Laidlaw Env’t Servs. (TOC),
Inc., 528 U.S. 167, 180–181 (2000)). Declaratory relief like-
wise requires a “case or controversy of ‘sufficient immedi-
acy and reality.’” City of L.A. v. Lyons, 461 U.S. 95, 104
(1983) (quoting Golden v. Zwickler, 394 U.S. 103, 109
(1969)); see California v. Texas, 593 U.S. 659, 672–73
(2021).
“Past exposure to illegal conduct does not in itself show
a present case or controversy regarding injunctive relief []
if unaccompanied by any continuing, present adverse ef-
fects.” O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974). A
plaintiff who fails to allege “a real and immediate threat”
of future harm lacks standing to seek injunctive relief. Ly-
ons, 461 U.S. at 105. Instead, a plaintiff must show “a
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US INVENTOR, INC. v. SQUIRES 7
sufficient likelihood that he will again be wronged in a sim-
ilar way” as before. Id. at 111; accord Food & Drug Admin.
v. All. for Hippocratic Med., 602 U.S. 367, 381 (2024).
For an organization, “the standing requirements of Ar-
ticle III can be satisfied in two ways.” Students for Fair
Admissions, Inc. v. President & Fellows of Harvard Coll.,
600 U.S. 181, 199 (2023). First, “the organization can claim
that it suffered an injury in its own right.” Ibid. Second,
even if the organization itself suffered no injury, it can
nonetheless “assert standing solely as the representative of
its members.” Ibid. (internal quotation marks and citation
omitted). This second avenue is known as associational
standing. When assessing associational standing, the
question is “whether an association has standing to invoke
the court’s remedial powers on behalf of its members.”
Warth v. Seldin, 422 U.S. 490, 515 (1975). The answer is
yes where (a) the association’s “members would otherwise
have standing to sue in their own right; (b) the interests it
seeks to protect are germane to the organization’s purpose;
and (c) neither the claim asserted nor the relief requested
requires the participation of individual members in the
lawsuit.” Hunt v. Wash. State Apple Advert. Comm’n, 432
U.S. 333, 343 (1977); accord Students for Fair Admissions,
600 U.S. at 199.
Appellants maintain that they have established stand-
ing under both theories: organizational standing and asso-
ciational standing. Neither works.
A.
Appellants have not established organizational stand-
ing to seek injunctive relief because they have not ade-
quately pleaded a risk of future injury to the appellant
organizations.
Under the organizational-standing doctrine, organiza-
tions may “sue on their own behalf for injuries they have
sustained.” Havens Realty Corp. v. Coleman, 455 U.S. 363,
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US INVENTOR, INC. v. SQUIRES 8
379 n.19 (1982) (citing Warth, 422 U.S. at 511). Like indi-
viduals, organizations “must satisfy the usual standards
for injury in fact, causation, and redressability,” All. for
Hippocratic Med., 602 U.S. at 393–94, including the re-
quirement, when seeking injunctive relief, that the litigant
demonstrate a concrete threat of future injury. So “an or-
ganization may not establish standing simply based on the
intensity of the litigant’s interest or because of strong op-
position to the government’s conduct, no matter how
longstanding the interest and no matter how qualified the
organization.” Id. at 394 (internal quotation marks and ci-
tations omitted).
As a corollary, FDA v. Alliance for Hippocratic Medi-
cine makes clear that an organization cannot parlay strong
views into standing through its own expenditures. In that
case, a group of organizations argued that they had stand-
ing to challenge certain FDA actions because they “forced”
the organizations to “expend considerable time, energy,
and resources” on advocacy and education. 602 U.S. at 394.
The Supreme Court disagreed, reasoning that an organiza-
tion “cannot spend its way into standing simply by expend-
ing money to gather information and advocate against the
defendant’s action.” Ibid. It is “incorrect,” the Court con-
cluded, to suggest that “standing exists when an organiza-
tion diverts its resources in response to a defendant’s
actions.” Id. at 395. Were it otherwise, “all the organiza-
tions in America would have standing to challenge almost
every federal policy that they dislike, provided they spend
a single dollar opposing those policies.” Ibid.
Appellants fail to establish organizational standing be-
cause they rely on diversion-of-resources theories that Al-
liance for Hippocratic Medicine foreclosed. US Inventor’s
claimed injury is that misleading language on patent co-
vers leads the organization to “spend time and resources
developing its own guidance for its members,” Compl. ¶ 7,
and “force[s] the organization to partake in activities out-
side of its normal expenditures,” id. ¶ 8. Inventor’s
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US INVENTOR, INC. v. SQUIRES 9
Association of South Central Kansas strikes a similar
chord: it “has been forced to divert its resources outside of
the typical scope of its activities as a means to protect its
members.” Id. ¶ 10. Same goes for Inventors Network of
Minnesota: it has had to “spend time and resources on this
issue.” Id. ¶ 11. In other words, to quote their brief, “Or-
ganizational Appellants had to divert resources to educate
their members about the misrepresentations, impairing
their ability to fulfill their missions.” Apps.’ Br. 8. Alliance
for Hippocratic Medicine made clear that “[a]n organiza-
tion cannot manufacture its own standing in that way.”
602 U.S. at 394.
The law of the Fourth Circuit supports the same con-
clusion. More than a decade before Alliance, that court
held that an organization cannot establish standing by
pointing to a “diversion of resources.” Lane v. Holder, 703
F.3d 668, 675 (4th Cir. 2012). “[A]n organization that de-
cides to spend its money on educating members, respond-
ing to member inquiries, or undertaking litigation in
response to legislation” does not suffer “a cognizable in-
jury.” Ibid. Otherwise, “organizations with merely ‘ab-
stract concerns with a subject that could be affected by an
adjudication’” would have standing. Ibid. (quoting Simon
v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 (1976) (brack-
ets adopted)). Treating such harms as cognizable injuries
“would not comport with the case or controversy require-
ment of Article III of the Constitution.” Ibid.
Appellants focus their standing arguments on an ear-
lier case, Havens Realty Corp. v. Coleman, 455 U.S. 363
(1982), but the Supreme Court made clear in Alliance that
Havens Realty is a narrow decision that does not support
diversion-of-resource standing theories. In Havens Realty,
a plaintiff organization known as HOME sued the owner
and operator of several apartment complexes, alleging that
the business “had provided HOME’s black employees false
information about apartment availability—a practice
known as racial steering.” Alliance, 602 U.S. at 395 (citing
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US INVENTOR, INC. v. SQUIRES 10
Havens, 602 U.S. at 366 & n.1). The organization alleged
that these deceptive practices harmed its ability to provide
counseling and referral services to home-seekers. Havens,
602 U.S. at 369. The Court accepted this claim of injury for
standing purposes, finding it sufficient that the racial
steering practices “perceptibly impaired” the organiza-
tion’s “ability to provide counseling and referral services.”
Id. at 379.
Importantly, the Supreme Court clarified Havens in Al-
liance, where it held that Havens did not permit plaintiffs
to establish standing based on diversion of organizational
resources. The Court explained that the conduct in Havens
had “directly affected and interfered with HOME’s core
business activities.” Alliance, 602 U.S. at 395; see ibid.
(deeming it critical that “HOME . . . operated a housing
counseling service”). After all, a non-profit service can
hardly provide effective counseling or referrals to home-
seekers if its employees receive false information about
what apartments are available. The Court added that the
conduct HOME alleged resembled a traditional tort, in that
it was “not dissimilar to a retailer who sues a manufacturer
for selling defective goods to the retailer.” Alliance, 602
U.S. at 395. It indicated these factors were essential to the
case’s holding, stating that “Havens was an unusual case”
that the Court “has been careful not to extend . . . beyond
its context.” Id. at 396.
Appellants’ theory lacks the critical ingredients of Ha-
vens. First, the future injury that appellants allege is not
one that “directly affect[s]” the appellants. Alliance, 602
U.S. at 395 (emphasis added) (characterizing Havens).
While the plaintiff counseling service in Havens could plau-
sibly claim that the organization itself would be misin-
formed by the defendant landlord’s false information about
housing availability, the appellant organizations here can
make no comparable claim about the information on patent
covers. After all, they acknowledge they are aware of the
eBay decision—the decision with which they allege that the
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US INVENTOR, INC. v. SQUIRES 11
cover language is inconsistent. They instead assert only
indirect injury on the theory that third parties— unidenti-
fied inventors—will be misinformed by defendants, and the
appellant organizations will have to divert resources to
help them as a result. Compl. ¶¶ 7, 10, 11. This is not the
type of direct injury alleged in Havens, but rather the type
of diversion-of-resource theory that Alliance forecloses.
Tied to this, appellants have not alleged an injury that
resembles a traditional tort like the one in Havens. See
Alliance, 602 U.S. at 395. Appellants are not similar to “a
retailer who sues a manufacturer for selling defective goods
to the retailer,” ibid., because in such a case, the manufac-
turer is providing the retailer with a defective good that the
retailer would foreseeably pass on to consumers, harming
the retailer’s business and reputation. Appellants have not
suggested that they would pass on the alleged misinfor-
mation on patent covers to others; to the contrary, they
suggest that they provide advice to disabuse inventors of
the information on the covers. Compl. ¶¶ 7, 10, 11.
Finally, appellants have not plausibly claimed the in-
formation appellees provide on patent covers impedes their
“core business activities,” Alliance, 602 U.S. at 395. Appel-
lants assert the patent covers have diverted them from
their core activities, by causing them to take on advice-giv-
ing responsibilities they would not otherwise perform.
Compl. ¶ 7 (“Providing business advice for each independ-
ent inventor or small business containing inventors is out-
side the usual practice of US Inventors. Nonetheless,
because of the USPTO’s failure to provide an accurate rep-
resentation of a patent owner’s rights on the cover of an
issued patent . . . US Inventor has had to spend time and
resources developing its own guidance for its members on
how to handle investment, research, and business deci-
sions . . .”); see id. ¶ 10 (stating that the Inventor’s Associ-
ation of South Central Kansas, which “provides patent
application guidance and networking opportunities for in-
ventors . . . has been forced to divert its resources outside
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US INVENTOR, INC. v. SQUIRES 12
of the typical scope of its activities as a means to protect its
members”); id. ¶ 11 (stating that Inventors Network of
Minnesota “focuses on assisting inventors through the pro-
cess of bringing their ideas to market” and that the organ-
ization “has been injured by having to spend time and
resources” on the topic of the scope of patent protections).
In sum, appellants have not alleged the type of direct
interference with core business activities that the Supreme
Court found critical to Havens, but rather the diversion of
resources that the Court deemed inadequate in Alliance.
Appellants have failed to plausibly allege organizational
standing.
B.
Appellants likewise fail to establish associational
standing. Recall that an organization may rely on associa-
tional standing if “(a) its members would otherwise
have standing to sue in their own right; (b) the interests it
seeks to protect are germane to the organization’s purpose;
and (c) neither the claim asserted nor the relief requested
requires the participation of individual members in the
lawsuit.” Hunt, 432 U.S. at 343. Appellants have not ade-
quately pleaded associational standing for any appellant.
1.
As to US Inventor, appellants’ attempts to plead asso-
ciational standing fail because appellants have not identi-
fied any group member facing a threat of future injury. US
Inventor has submitted declarations from three inventor-
members: Schumann Rafizadeh, Venkat Konda, and Paul
Hayes. All three state, in substance, that they were “mis-
led by the representations on the cover of issued patents”
and “assumed that there would be a right to exclude others
from making, using, offering for sale, or selling the inven-
tion of [his] issued patent throughout the United States.”
Compl. Ex. B. ¶¶ 7, 9 (Rafizadeh); see Compl. Ex. C. ¶ 6
(Konda); Compl. Ex. D. ¶ 5 (Hayes). But all three
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US INVENTOR, INC. v. SQUIRES 13
acknowledge that they have “now learned that the right to
exclude infringers from practicing the patent invention
through injunctive relief is not a legal guarantee” in the
wake of eBay. Compl. Ex. B. ¶ 8; see Compl. Ex. C. ¶ 7;
Compl. Ex. D. ¶ 6. Now that each of these members knows
about the eBay decision, there is not “a sufficient likelihood
that he will again be wronged” by the cover page language
“in a similar way.” Lyons, 461 U.S. at 111; see Murthy, 603
U.S. at 59 (past harm “is relevant only insofar as it is a
launching pad for a showing of imminent future injury”).
They are thus “no more entitled to an injunction than any
other citizen” who holds a patent, “and a federal court may
not entertain” such a claim. Lyons, 461 U.S. at 111.
2.
Appellants cannot invoke associational standing for
the remaining two appellant organizations because those
groups did not plead a theory of associational standing at
all. Appellants pleaded an associational theory for U.S. In-
ventor by alleging that the group suffered an “associational
injury” on account of harm to its members, Compl. ¶ 9, and
attaching supporting member declarations, Compl. Exs. B–
D. In contrast, appellants alleged that Inventor’s Associa-
tion of South Central Kansas and Inventors Network of
Minnesota each suffered an “organizational injury,” in the
form of diversion of resources. Compl. ¶¶ 10, 11. The com-
plaint makes no assertions about harms suffered by those
groups’ members and attaches no declarations from them.
In short: nothing in the complaint hints at a theory of as-
sociational standing for any party but US Inventor. The
district court was therefore correct to consider associa-
tional standing for only US Inventor.
IV
The district court did not abuse its discretion in deny-
ing appellants leave to amend their complaint. District
courts “should freely give leave” to amend a pleading “when
justice so requires.” Fed. R. Civ. P. 15(a)(2). But leave need
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US INVENTOR, INC. v. SQUIRES 14
not be granted when amendment would be “futile.” Laber
v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc) (ci-
tation omitted). Here, the only change appellants have
suggested they would make in an amended complaint is
clarifying that their associational standing arguments
were being advanced on behalf of Inventor’s Association of
South Central Kansas and Inventors Network of Minne-
sota, in addition to US Inventor. Appellants’ Br. 21–22.
But those groups’ associational standing arguments would
fail for the same reason as US Inventor’s—specifically, the
absence of plausible allegations of an imminent threat of
future injury to any of the group’s members. Appellants
have never asserted that they could add further factual al-
legations that would remedy that foundational problem.
Accordingly, amendment would be futile.
* * *
We affirm the district court’s judgment.
AFFIRMED
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