Friday, October 31, 2014

Consumer Watchdog / PubPat seek Supreme Court review of standing issue in stem call case concerning WARF's US 7,029,913

In the year 2008, IPBiz discussed the challenge to WARF's US Pat. 7,029,913 made by PubPat and Consumer Watchdog. See post
How significant was the PubPat wiff on re-exam of US 7,029,913?

A headline in the San Diego Union-Tribune on October 30, 2014 Stem cell patent to reach Supreme Court actually means that a petition for cert is being filed, not that the Supreme Court has agreed to hear the case. The legal issue is NOT about the patenting of the stem cell material, but rather about whether Consumer Watchdog has standing to bring the case.

Earlier in 2014, PatentDocs described the issue presented in the case, and the viewpoint expressed by the Federal government:

While noting that "Congress may -- and commonly does -- authorize administrative agencies to take action or issue decisions at the behest of parties who lack any particularized interest in the subject matter of the proceeding," the government states that "[w]hen the petitioner in such a proceeding later seeks judicial review in an Article III court, . . . 'the constitutional requirement that it have standing kicks in.'" The government suggests that in many cases, the petitioner's standing to appeal will be apparent. For example, the brief notes that if the Board had determined that the '913 patent was unpatentable, "there would have been little doubt regarding WARF's standing to appeal that adverse decision." However, the government argues that Consumer Watchdog cannot appeal the Board's decision affirming the patentability of the '913 patent "unless it can identify some particularized, real-world consequence of that decision for Consumer Watchdog itself." Although "Consumer Watchdog is plainly adverse to WARF and believes the ’913 patent to be invalid," the brief asserts that this alone is insufficient to demonstrate the existence of a justiciable case or controversy. The government explains that Consumer Watchdog "claims no commercial interest in the subject matter of the ’913 patent; it faces no plausible risk of an infringement claim; it is neither a prospective competitor nor a prospective licensee of WARF[; n]or does Consumer Watchdog assert any basis for associational or representative standing." As a result, the government contends that Consumer Watchdog lacks standing to appeal the Board's reexamination decision because, "as far as the organization's own concrete interests are concerned, it does not matter whether PTO got the right answer."

See WARF's arguments against standing for Consumer Watchdog.


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