IP Law Daily, PATENT—Fed. Cir.: Appeal of PTAB allowance of substitute claims is dismissed for lack of standing, (Apr 7, 2026)

By Steven Melendez

A challenge by ironSource of Digital Turbine, Inc.’s substitute patent claims was dismissed by the Federal Circuit for failing to show the company would face harm.

An appeal by ironSource Ltd. of a decision by the Patent Trial and Appeal Board (PTAB) allowing Digital Turbine, Inc. (DT) to substitute claims in its Patent No. 11,157,256 was dismissed for lack of jurisdiction, after a Federal Circuit panel showed ironSource failed to establish injury in fact required for standing (IronSource Ltd. v. Digital Turbine, Inc., No. 24-1831 (Fed. Cir. Apr. 7, 2026)).

Background. ironSource had petitioned the PTAB for post-grant review of the original claims of the ‘256 patent, which pertains to “downloading and installing mobile device applications in the background instead of directing a user to an application store,” according to the ruling.

After the post-grant review began, DT filed a contingent motion to amend the patent with proposed claims that the Board indicated in preliminary guidance were unpatentable. DT then filed a revised motion to amend, proposing a new set of substitute claims 23-27. The PTAB granted the revised motion to amend, finding that ironSource failed to show by preponderance of the evidence that the new claims were unpatentable or patent ineligible. At the same time, the Board found original patent claims were unpatentable in light of its decision in a previous post-grant review also involving ironSource and Digital Turbine that similarly held challenged claims unpatentable in U.S. Patent No. 10,782,951.

Jurisdiction and standing. The Federal Circuit has jurisdiction to review final decisions of the PTAB under federal law, but DT argued ironSource lacked Article III standing to file its appeal.

A party doesn’t need Article III standing to file a post-grant review petition or obtain a decision from the PTAB, but it does need to establish Article III standing to challenge a patent when it’s seeking review in the Federal Circuit, according to the ruling. And ironSource bears the burden to prove that it does, in fact, have standing as the party seeking the patent review.

To establish standing, a party must show that it has “suffered an injury in fact,” and in a patent validity case, that means showing “that it has concrete plans for future activity that creates a substantial risk of future infringement or likely cause the patentee to assert a claim of infringement,” according to the ruling.

For its part, ironSource argued it met that burden based on “veiled threats” of infringement brought by DT related to a “Click to Install” (C2I) feature of its now-discontinued Aura product. The company cited the declaration of its senior director of strategic product management who testified that in early 2021, he heard from actual and potential customers that DT alleged it had one or more patents covering the feature. As a consequence, he testified, ironSource modified some of the C2I features and made concessions to customers, including offering additional indemnification, in order to protect against potential litigation by DT. The company suspended the modified Aura product in August 2022 and seeks to reintroduce it but is barred from doing so based on the ruling that the substitute claims are patentable.

But, the court found, the declaration is insufficient to establish injury in fact because “it fails to demonstrate concrete plans to reintroduce this product with features that are implicated by the substitute claims at issue.” The declaration failed to specifically address the narrower substitute claims, rather than the original claims, and how those implicate features ironSource wants to put into its products.

“Because ironSource does not show how the C2I features are implicated by the substitute claims, which introduce two narrowing limitations and issued after DT’s alleged ‘veiled threats’ of infringement, we conclude ironSource has failed to show injury in fact based on potential infringement liability,” according to the ruling.

The appellate panel dismissed the appeal for lack of jurisdiction.

The Case is No. 24-1831.

Judge: Moore, K.

Attorneys: Gary Abelev (Hunton Andrews Kurth LLP) for ironSource Ltd. Todd Richard Gregorian (Fenwick & West LLP) for Digital Turbine, Inc.

Companies: ironSource Ltd.; Digital Turbine, Inc.

Cases: Patent FedCirNews