In Consumer Watchdog v. WARF, App. No. 2013-1377 (Fed. Cir., June 4, 2014) the Fed. Cir. found that the Watchdog can bark, but it can’t get a second bite. (A copy can be found at the end of this post.)

Consumer Watchdog lost an inter partes reexamination that it initiated to challenge the validity of WARF’s stem cell patent, U.S. Pat. No. 7,029,913. (A copy can be found at the end of this post.) Although the statute facially gives reexamination losers the right to appeal, in this case, the panel found that Watchdog lacked the requisite “actual or imminently threatened injury” required under the Constitution’s Art. III to appeal the adverse decision. Watchdog was not an “actual or prospective competitor of WARF or a licensee” but simply alleged general harm to taxpayer-funded research in California, due to WARF’s licensing efforts or that the patent completely preempted all uses of human embryonic stem cells.

The panel found that the “injury” requirements apply “with equal force to appeals from administrative agencies, such as the [PTO], to the federal courts.” Article III standing was stated not to be a requirement “to appear before an administrative agency” as in a reexamination proceeding, but “once a party seeks review in a federal court, ‘the constitutional requirement that it have standing kicks in’[{citing Sierra Club v. E.P.A]…the ‘requirement for injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute.’”

This all makes perfect Constitutional law sense, but I can see the posters now: “Who will protect the (potential) fetuses from ‘injury’?” If for a moment, this seems far-fetched, go to Amazon and search for “Should Trees Having Standing.”

13-1377.Opinion.6-2-2014.1

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