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Consumer Group Lacks Standing to Appeal Patentability of Stem Cells

By Gabriella Khorasanee, JD on June 17, 2014 | Last updated on March 21, 2019

The Wisconsin Alumni Research Foundation ("WARF") holds U.S. Patent No. 7,019,913 ("'913"), which discloses "a purified preparation of primate embryonic stem cells."

Consumer Watchdog, a "nonprofit organization dedicated to providing an effective voice for taxpayers and consumers in an era when special interests dominate public discourse, government and politics," sought inter partes reexamination of Patent '913 in 2006. When it the group was unsuccessful in the reexamination, it appealed to the Federal Circuit.

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Article III Standing

Under Article III of the U.S. Constitution, a party must have standing to find redress in federal court. To satisfy the requirements of standing, a party must show (1) an "injury in fact;" (2) which is "traceable to the challenged action;" (3) and that a "favorable judicial decision will redress the injury."

Here, the Federal Circuit found that Consumer Watchdog lacked standing to appeal the reexamination of Patent '913 for several reasons. First, Consumer Watchdog is not itself involved in any activities regarding stem cells. Second, it doesn't claim it intends to engage in stem cell research. Finally, it doesn't establish any connection at all -- as licensee or otherwise -- to Patent '913.

Administrative Right to Appeal

Consumer Watchdog argued that since it has an administrative right to appeal, that the outcome of the reexamination of Patent '913 -- which it did not agree with -- was sufficient injury to confer Article III standing. The court disagreed, stating, "the statutory grant of a procedural right does not eliminate the requirement that Consumer Watchdog have a particularized, concrete stake in the outcome of reexamination."

Distinguishing FOIA and FECA

The court was careful to distinguish claims under the Freedom of Information Act and Federal Election Campaign Act, noting that the Acts not only create rights to appeal, but "created substantive legal rights -- access to certain government records -- the denial of which inflicts a concrete and particularized injury in fact." But mere disagreement of an outcome, such as Consumer Watchdog's here, is alone not enough to show an injury in fact.

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