Last week Consumer Watchdog (“CW”) and Wisconsin Alumni Research Foundation (“WARF”) squared off at the Federal Circuit over CW’s appeal of the  inter partes reexamination of WARF’s U.S. Patent No.  7,029,913 (the ’913 Patent, entitled “Primate Embryonic Stem Cells”). Consumer Watchdog v. Wisconsin Alumni Research Foundation, No. 13-1377 (Fed. Cir. 2013).  CW’s appeal challenges the patent-eligibility of in vitro cultured human embryonic stem cells (hESCs) claimed in the ’913 Patent.After the initial appeal was filed, the Federal Circuit on its own initiative asked the parties to brief the issue whether CW, as a third party requester, had standing to seek review of the USPTO affirmation of the ’913 Patent claims.   During a hearing on December 2nd, both parties addressed the Federal Circuit panel’s questions regarding CW’s claimed injury required to establish Article III standing. 

On December 4th, 2013, the Federal Circuit issued a nonprecedential order requesting the U.S. Patent and Trademark Office (“USPTO”) and the United States to also address whether CW has standing to pursue its appeal to the Federal Circuit. The requested briefing is due January 6, 2014.  The Court also asked the USPTO and the United States to participate in oral argument to be scheduled in January of 2014.  CW and WARF each may file responsive briefs by January 16, 2014.

A recording of the December 2, 2013 oral argument is available on the Federal Circuit web page.

A copy of the December 4th, 2013 Order is available here.