Saturday, February 09, 2019

"Consumer Watchdog" case cited in Momenta case on standing

Momenta argues that since the purpose of the America
Invents Act is to provide an alternative to district court litigation,
appeal should be available from the PTAB as it
would be available from a district court decision. Momenta
states that the estoppel provision provides injury-in-fact,
and that this suffices to support constitutional standing.
However, estoppel of Momenta is irrelevant now that Momenta has
“exited” its development of the Orencia® product. Estoppel cannot constitute an injury-in-fact when
Momenta “is not engaged in any activity that would give
rise to a possible infringement suit.” Consumer Watchdog,
753 F.3d at 1262; see also Hollingsworth v. Perry, 570 U.S.
693, 704 (2013) (the party must be in the position of
“seek[ing] a remedy for a personal and tangible harm”);
Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018) (“the requirement
of such a personal stake [in the outcome] ‘ensures
that courts exercise power that is judicial in nature’”
(quoting Lance v. Coffman, 549 U.S. 437, 441 (2007))).


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