ironSource Ltd. v. Digital Turbine, Inc., Appeal No. 2024-1831 (Fed. Cir. April 7, 2026)

In its only precedential patent opinion last week, the Federal Circuit dismissed an appeal from a post-grant review in which substitute claims were permitted, finding that patent challenger ironSource failed to establish Article III standing for its appeal.  The Court’s ruling turned on the fact that all originally-challenged claims of the patent at issue had been found unpatentable, and that ironSource had not shown how its planned product features were implicated by the amended—as opposed to original—claims.

In the proceedings below, ironSource had challenged claims of Digital Turbine’s U.S. Patent No. 11,157,256, which is directed to background downloading of mobile device applications.  The Patent Trial and Appeal Board found all challenged claims unpatentable in light of a prior decision involving the ’256 patent’s parent, but granted Digital Turbine’s contingent motion to amend with narrowed substitute claims, over ironSource’s opposition.  In appealing that decision, ironSource argued that Digital Turbine had made “veiled threats” of enforcing its patents against “Click to Install” (C2I) features of ironSource’s software product; that ironSource had ultimately removed those features as a result; and that it was prevented from re-introducing the features by the Board’s finding on the substitute claims.

While Article III standing is not required to bring a PGR challenge before the Patent Office, it is required to appeal an adverse ruling in the judiciary.  On review, the Federal Circuit panel relied on precedent holding that where an appellant challenging patent validity relies on potential infringement liability as a basis for standing, “it must establish that it has concrete plans for future activity that creates a substantial risk of future infringement or likely cause the patentee [sic] to assert a claim of infringement.”  Here, the Court found ironSource failed “to demonstrate concrete plans to reintroduce this product with features that are implicated by the substitute claims at issue.”  (Original emphasis.)

ironSource’s evidence focused on the original claims of the ’256 patent and its parent patent—which had been in force when Digital Turbine’s alleged infringement threats had occurred—but it was undisputed that the substitute claims surviving the PGR had added material narrowing limitations.  Because ironSource’s evidence was “silent as to these limitations and their relationship to the C2I features ironSource seeks to add to its products,” the panel found that ironSource had not established an actual or imminent injury-in-fact sufficient to confer standing, and dismissed the appeal.

The opinion can be found here.

By Jason A. Wrubleski

This article summarizes aspects of the law and does not constitute legal advice. For legal advice with regard to your situation, you should contact an attorney.