By Dennis Crouch
Consumer Watchdog v. WARF and USPTO (Fed. Cir. 2014)
The Patent Act provides for a variety of administrative review proceedings that can be filed by any third party wanting to challenge the validity of an issued patent. The statute also provides the third-party requester with a right to appeal any adverse judgment to the Court of Appeal for the Federal Circuit. Following these statutory guidelines, Consumer Watchdog requested review (inter partes reexamination) of WARF’s patents covering human embryonic stem cells. When the USPTO sided with WARF, Consumer Watchdog appealed. But Consumer Watchdog has a major problem with its appeal – standing. Consumer Watchdog is a public interest group who is not being directly impacted by WARFs patents other than the general indignity felt by all of us.
As the appeal was pending, the Supreme Court decided Already v. Nike and reminded courts that, under the Constitution, they only have power over actual cases and controversies. At Patently-O, we used that case as a springboard for questioning whether the statutory appellate authority was sufficient to satisfy the demands of the Constitution, and the Court immediately called for Consumer Watchdog and WARF to brief the question of standing.
- Independent Justification for Appellate Standing over Inter Partes Reviews – Part I
- Independent Justification for Appellate Standing over Administrative Patent Challenges – Part II
- Constitutional Challenge to Administrative Patent Challenges – Part III
- Constitutional Challenge to Administrative Patent Review – Part IV
- Power Grab?: USPTO Says No Appeal (CW v. WARF Part V)
Now, the Federal Circuit has dismissed the appeal – holding that Consumer Watchdog’s appeal cannot stand because the non-profit “has not established an injury in fact sufficient to confer Article III standing.” In essence, the court rules that the right of appeal granted by statute is unconstitutionally broad and the cure is to narrow the right in order to conform with Constitutional requirements of standing.
Regarding injury-in-fact, all parties agreed that the standing requirements mandate such injury. [T]he “requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute.” Summers v. Earth Island Inst., 555 U.S. 488 (2009). Consumer Watchdog argued that its injury was cemented and particularized after it filed for inter partes reexamination and had its case rejected by the USPTO. However, the Federal Circuit has rejected that argument:
Here, the Board’s disagreement with Consumer Watchdog did not invade any legal right conferred by the inter partes reexamination statute. The statute at issue here allowed any third party to request reexamination, and, where granted, allowed the third party to participate. The statute did not guarantee a particular outcome favorable to the requester. Consequently, the Board’s denial of Consumer Watchdog’s request did not invade any legal right conferred upon Consumer Watchdog.
For this reason, Consumer Watchdog’s analogy to the Freedom of Information Act (FOIA) and the Federal Election Campaign Act (FECA) are unpersuasive. These acts create substantive legal rights – access to certain government records – the denial of which inflicts a concrete and particularized injury in fact. . . [Here,] Consumer Watchdog was not denied anything to which it was entitled.
One result here is another set of USPTO actions for which there is no appeal.
Dan Ravicher is the key individual behind the Consumer Watchdog case. It was Ravicher who also pushed forward the Myriad case. In similar fashion, it appears to me that he has a good shot at having this case now heard by the Supreme Court.