Statutory Right to Appeal Does Not Bypass Article III Standing Requirements


Consumer Watchdog v. Wisconsin Alumni Research Foundation

The U.S. Court of Appeals for the Federal Circuit dismissed an appeal from the Patent Trial and Appeal Board (the Board) on the grounds that the appellant, a public interest group, did not establish sufficient injury in fact to confer Article III standing.  Consumer Watchdog v. Wisconsin Alumni Research Foundation, Case No. 13-1377 (Fed. Cir., June 4, 2014) (Rader, J.).

Consumer Watchdog is a public interest group that describes itself as “providing a voice for taxpayers and consumers in special-interest-dominated public discourse, government and politics.”  It initiated an inter partes reexamination of a Wisconsin Alumni Research Foundation (WARF) patent directed to embryonic stem cells, alleging that WARF’s “broad and aggressive” enforcement of this patent allows WARF to preempt all research using embryonic stem cells.  After the Board upheld the claims in reexamination, Consumer Watchdog appealed.

Finding that Consumer Watchdog failed to demonstrate that it suffered a concrete and specific “injury in fact”—one of the three requirements for standing in an Article III court—the Federal Circuit dismissed the appeal for lack of standing.  The Court found that Consumer Watchdog articulated no actual connection to the claimed subject matter.  For example, it does not now or intend to later participate in any potentially infringing activity, and it is not an actual or potential licensee of the patent or a competitor in the relevant field.  The Court noted that Consumer Watchdog suffered no injury except that it did not achieve its desired result in the reexamination.

Consumer Watchdog analogized its situation to being denied access to documents under the Freedom of Information Act and Federal Election Campaign Act (FOIA and FECA).  The Court, however, distinguished those statutes as conferring substantive rights, denial of which inflicts a concrete injury.  According to the Court, the inter partes reexamination statute does no more than confer a right to request reexamination and participate in the proceedings, all of which Consumer Watchdog enjoyed.  The statute does not, in contrast, guarantee a party any particular result.

The Court acknowledged that the inter partes reexamination statute created a procedural right to appeal, and that, in such situations, the other two standing requirements of immediacy and redressability can be relaxed.  The Court, however, held the requirement of injury in fact “is a hard floor of Article III jurisdiction that cannot be removed by statute.”  Finding that Consumer Watchdog did not have a “particularized, concrete stake” in the outcome of the reexamination, but merely a “general grievance,” the Court dismissed the appeal.




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