Consumer Watchdog v. Wisconsin Alumni Research Foundation


Docket No. 2013-1377

PROST, RADER, HUGHES
June 4, 2014

Brief Summary: Consumer Watchdog’s appeal regarding the PTAB decision affirming the validity of WARF’s US 7,029,913 directed to human embryonic stem cell cultures dismissed for failure to show an injury sufficient to confer Article III standing.

Summary: Consumer Watchdog appeal of the PTAB decision affirming the validity of claims 1-4 of WARF’s US 7,029,913 directed to human embryonic stem cell cultures was dismissed for failure to show an injury sufficient to confer Article III standing. 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 but not any research or commercial activities relating to ES cells or that it is an actual or prospective licensee of the ‘913 patent. The opinion explained that to meet the constitutional minimum for Article III standing in appeals to federal courts, the party must show that it has suffered a “concrete and actual, and actual or imminent” “injury in fact” that is “fairly traceable to the challenged action” and “that it is likely, rather than merely speculative, that a favorable decision will redress the injury” (Lujan, US 1992, the party “must have ‘a personal stake in the outcome’” vs. injury to a third party). The injury alleged by Consumer Watchdog was that the USPTO refused to cancel the claims of the ‘913 patent which was found “insufficient to confer standing” (“the Board’s denial of Consumer Watchdog’s request did not invade any legal right conferred upon Consumer Watchdog”). It did note that “whether, under other circumstances, the preclusive effect of the estoppel provisions [of the inter partes reexamination] could constitute an injury in fact” was being left “for future panels to decide”. Thus, Consumer Watchdog’s “general grievance” was “not enough to make this dispute justiciable.” 

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