Consumer Watchdog loses at CAFC

Consumer Watchdog appeals from the Patent Trial
and Appeal Board’s decision affirming the patentability of
claims 1–4 of U.S. Patent No. 7,029,913 (’913 patent).
Because Consumer Watchdog has not established an
injury in fact sufficient to confer Article III standing,
however, this court dismisses the appeal.




The interesting legal point is that, just become one brings
an inter partes re-exam, does not mean one can appeal an
adverse result to the CAFC:


The present appeal concerns Article III standing. To
meet the constitutional minimum for standing, the party
seeking to invoke federal jurisdiction must satisfy three
requirements. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992). First, the party must show that it has
suffered an “injury in fact” that is both concrete and
particularized, and actual or imminent (as opposed to
conjectural or hypothetical). Id. at 560–61. Second, it
must show that the injury is fairly traceable to the challenged
action. Id. at 560. Third, the party must show
that it is likely, rather than merely speculative, that a
favorable judicial decision will redress the injury. Id. at
561.

These constitutional requirements for standing apply
on appeal, just as they do before district courts. Hollingsworth,
133 S. Ct. at 2661. Accordingly, these requirements
apply with equal force to appeals from
administrative agencies, such as the U.S. Patent and
Trademark Office (PTO), to the federal courts. See Sierra
Club v. E.P.A., 292 F.3d 895, 899 (D.C. Cir. 2002). To be
clear, although Article III standing is not necessarily a
requirement to appear before an administrative agency,
once a party seeks review in a federal court, “the constitutional
requirement that it have standing kicks in.” Id.

(…)

[Consumer Watchdog] does not allege that it intends to engage in such activity.
Nor does it allege that it is an actual or prospective
licensee, or that it has any other connection to the ’913
patent or the claimed subject matter. Instead, Consumer
Watchdog relies on the Board’s denial of Consumer
Watchdog’s requested administrative action—namely, the
Board’s refusal to cancel claims 1–4 of the ’913 patent.
That denial, however, is insufficient to confer standing.

(…)
The statute at issue
here allowed any third party to request reexamination,
and, where granted, allowed the third party to participate.
35 U.S.C. §§ 311(a), 314(b)(2) (2006). The statute
did not guarantee a particular outcome favorable to the
requester. See generally 35 U.S.C. §§ 311–318 (2006).
Consequently, the Board’s denial of Consumer Watchdog’s
request did not invade any legal right conferred upon
Consumer Watchdog.




The punchline



Nor is it enough that the inter partes reexamination
statute allows a third party requester to appeal decisions
favorable to patentability. 35 U.S.C. § 315(b). A statutory
grant of a procedural right, e.g., right to appeal, does
not eliminate the requirements of Article III.

(…)

But the statutory grant of a
procedural right does not eliminate the requirement that
Consumer Watchdog have a particularized, concrete stake
in the outcome of the reexamination. Summers, 555 U.S.
at 496 (“[D]eprivation of a procedural right without some
concrete interest that is affected by the deprivation—a
procedural right in vacuo—is insufficient to create Article
III standing.”).