Do-Gooders Need Not Apply

By Alicia Palladino, Ph.D. and Tom Engellenner
According to its mission statement, Consumer Watchdog is a non-profit entity “dedicated to providing an effective voice for taxpayers and consumers in an era when special interests dominate public discourse, government and politics” – and they apparently also challenge patents in their spare time.

In 2006 Consumer Watchdog filed a request for inter partes reexamination under the old pre-AIA rules, challenging certain patent rights to stem cells that had been granted by the USPTO to the Wisconsin Alumni Research Foundation. When this public interest group failed to get the WARF patent thrown out last year, they exercised their statutory right to appeal. Section 141(c) of the U.S. Patent Laws provides that a party to a USPTO administrative proceeding who is dissatisfied with the Patent Office’s final written decision may appeal to the U.S. Court of Appeals for the Federal Circuit. (35 U.S.C. § 141.)

However, like Dikembe Mutombo swatting away a lay-up, the Federal Circuit recently told Consumer Watchdog: Not in my house! Chief Judge Radar writing for a unanimous three-judge panel rejected the appeal out of hand because the public interest appellant simply lacked standing. According to the Federal Circuit opinion, to invoke federal jurisdiction, the petitioner must meet the minimum requirements of Article III. Consumer Watchdog v. Wis. Alumni Research Found., 753 F.3d 1258, 1260 (Fed. Cir. 2014). Continue reading “Do-Gooders Need Not Apply”