Today in Consumer Watchdog v. Wisconsin Alumni Research Foundation, the Federal Circuit ruled that the requestor of an inter partes reexamination did not have the right to appeal an adverse decision by the Patent Trial and Appeal Board. Consumer Watchdog requested inter partes reexamination of a patent owned by the Wisconsin Alumni Research Foundation (“WARF”) relating to human embryonic stem cell cultures. The request was granted, but Consumer Watchdog ultimately received an adverse decision (patentability of claims affirmed). In its appeal briefs, Consumer Watchdog did not allege “any involvement in research or commercial activities involving human embryonic stem cells.” Nor did it allege that it was an actual or prospective competitor of WARF or any of its licensees. Instead, Consumer Watchdog alleged that “WARF’s ‘broad and aggressive assertion of the ’913 patent has put a severe burden on taxpayer funded research in California where [Consumer Watchdog] is located.” Opinion at 3.

While the Patent Laws allow anyone to file an inter partes reexamination request, and also allow any requestor to appeal decisions favorable to patentability under 35 U.S.C. § 315(b), the Federal Circuit ruled that such a statutory grant did not trump the requirements of Article III of the Constitution. Opinion at 6. The Federal Circuit found that Consumer Watchdog did not meet the “constitutional minimum for standing” since it would not be injured by the decision affirming patentability. The estoppel provisions regarding inter partes reexaminations was not held to be sufficient to create an injury to a party that was not engaged in any activity that would give rise to a patent infringement suit. Opinion at 7.

It remains to be seen how the Federal Circuit will approach such appeals coming from IPR and CBM proceedings. Many of these are filed by competitors, oftentimes by entities actually accused of infringement. However, there may be circumstances where parties with a less direct connection to an infringing act pursue an IPR or a CBM.