Federal Circuit Finds Consumer Watchdog Lacks Standing to Appeal Reexamination Decision Upholding WARF Stem Cell Patent


In Consumer Watchdog v. Wisconsin Alumni Research Foundation, the government Circuit held that the inter partes reexamination requester must establish an injuries actually sufficient to confer Article III standing to be able to appeal a choice from the Patent Trial and Appeal Board towards the Federal Circuit. This decision may discourage some parties from instituting inter partes review or publish-grant review proceedings, since they are certainly not in a position to appeal a choice upholding the challenged patent.

The Patent at Issue

The Patent at issue was WARF’s U.S. Patent 7,029,913, forwarded to human embryonic stem cell cultures. Consumer Watchdog (then referred to as Foundation for Citizen and Consumer Legal rights) requested inter partes reexamination from the patent, that was purchased in check No. 95/000,154. The USPTO Examiner upheld the patentability from the claims (with a few amendments) and also the Board affirmed. Consumer Watchdog attracted the government Circuit under 35 USC § 141.

The Issue of Standing

Even though the statute offers attracts the government Circuit by “a third-party requester … dissatisfied using the ultimate decision within an attract the Board,” the court’s authority to listen to appeals is restricted by Article III from the U.S. Metabolic rate. As described through the Federal Circuit, “a hard floor of Article III jurisdiction” may be the requirement the party seeking review “must reveal that it’s endured an ‘injury actually.’”

The Government Circuit Decision

The Government Circuit decision was created by Judge Prost and became a member of by Judge Rader and select Hughes.

The Government Circuit considered whether Consumer Watchdog had alleged any injuries actually associated with the WARF stem cell patent, and located it had not.

  • Consumer Watchdog doesn’t allege that it’s involved in any action involving human embryonic stem cells that may make up the grounds for an violation claim.
  • [Consumer Watchdog] doesn’t allege it intends to take part in such activity.
  • [Consumer Watchdog doesn’t] allege that it’s a real or prospective licensee, or it has every other link with the ’913 patent or even the claimed subject material.

A legal court discovered that the only real “injury” alleged was the Board’s decision upholding the patent. A legal court described which was “insufficient to confer standing” since the decision ”did not invade any right conferred through the inter partes reexamination statute.” As the statute ”allowed any 3rd party to request reexamination, and, where granted, permitted the 3rd party to sign up,Inches it “did not guarantee a specific outcome favorable towards the requester.” Thus, Consumer Watchdog received all it had been titled to underneath the statute through the conduct from the reexamination proceeding, whatever the outcome.

A legal court acknowledged the outcome of 35 USC § 141, but described that although that statute “may relax the [standing] needs of immediacy and redressability, and eliminate any prudential limitations,…. [it] doesn’t get rid of the requirement that Consumer Watchdog possess a particularized, concrete stake within the results of the reexamination.”

A legal court also determined the estoppel provisions from the reexamination statute tendency to slack rise for an injuries actually sufficient to confer standing, a minimum of during this situation, because there wasn’t any indication that Consumer Watchdog would engage in litigation or any other proceeding challenging the patent where reexamination estoppel might apply.

Consumer Watchdog only has alleged an over-all grievance in regards to the ’913 patent. It states that it’s a nonprofit consumer legal rights organization that’s worried about the possibility preemptive achieve from the ’913 patent and also the alleged burden it places on citizen-funded research within the Condition of California.…. While Consumer Watchdog is dramatically against the Board’s decision and the presence of the ’913 patent, that isn’t enough to create this dispute justiciable.

The Outcome on AIA Patent Trials

Although this situation came about from your inter partes reexamination proceeding, the choice will probably affect appeals within the new AIA patent trial proceedings (inter partes review, publish-grant review, and covered business method patent review). Indeed, the AIA amended exactly the same statute (35 USC § 141) to maintain appeals by “[a] party for an inter partes review or perhaps a publish-grant review who’s dissatisfied using the final written decision from the Patent Trial and Appeal Board.” This decision may discourage parties who cannot establish an injuries actually associated with the prospective patent from instituting such proceedings.


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