afternoon we will hear consumer watchdog verses wisconsin alumni research  give third party request or the oversee the final decision the right to appeal that is that it is under six section fifty three fifteen that we appeal every person who section three fifteen applied has suffered certain injuries in fact first they're also subject to section three seventy if the full provision which prevents them from challenging the cotton in the future is are either p t o or in litigation in order to receive a final decision they also had to pass the burden of affection three thirty  injury they suffer well they give up their right to challenge challenge about in future through greek fan or litigation i'm going through the injury that one is that a procedural matter is that  what's the implications of that well as the french and ensure of course we're looking for a constitutional injury and so how was that within the constitutional dimension injury there are a few injuries that is one because they give up a right that others have they are differentiated from others and they've given up the right to challenge that and where is that concrete where is that i mean when they're not a part of enough practicing anything i mean that that may be speculative i guess theories may be true but how is that that injury at all concrete when we speculate well it applies to them and not to others and it's  substantial question of patentability and third in section three eleven they had to in order to get the examiner to initiate the rate than they had to comply with the requirements of their question are three eleven three eleven a says that third party request or at any time may request three exams but it's three eleven b that really is the limiting factor on who requests or exam because three eleven b says that the requests are must not only a pay a fee which m accompany any rate them request so there is a an economic injury to any request or and second their requests are met must set forth the pregnancy and manner of applying sider cited prior art to the claim for which for examination is sought so that the patent poses no risk at all to consumer watchdog so how is this the constitutional injury that we are seeking the injury the legal injury  lou one other patrons of the three it says that even when you're talking about procedural running it's you still have the procedural right so has in danger a concrete interest of the plaintiff apart from his having interest in the procedures of her i understand you think that your procedural rights have been impaired because you got in a part of your view and you didn't give us a decision that you're satisfied with what's the separate concrete interest in danger right that's true the deprivation of which is an injury but has there been a right created here the deprivation of which is a constitutional injury yes absolutely that we have our interest it is a decision with which we are satisfied and the way that we have security but that's true of everybody in the roman and everybody beyond this room you haven't suffered a injury of constitutional dimension when it's something that affects everyone uniformly we all have an interest in good government we all have an interest in knowledge of property rights  factory decision in this three examination because only consumer watchdog paid the fee found the prior artist if that's true in a lot of other administrative cases where people have rights to appear at a ministry of a level that's not an injury under the constitution you have to show something directly tying your interest specifically in this litigation to an injury in fact not just a procedural injury and the injury  right to have a decision in your favor and that's really the only injury that you're giving to us is that we didn't win and that somehow deprives us of something as you understand that's not a i like the term constitutional injury don't you have to show us commercial harm or jeopardy to your business or your standing in the marketplace or something of that decision you got that but we're here injuries it allows you then to go to an article three court we kept doubt on the path on the validity of the patent and section three fifteen gives us the right to cancellation of that right was denied by the unfavorable outcome and because you didn't get the patent then you say ah now i have a injury in fact because constitute because these congress created a right the deprivation of which causes me an injury but they didn't create that kind of right for you did i was created around for parties right to be heard yeah that's good that's the procedural thing but not a right to receive anything that depravation a wage cause you a constitutional range or family could say that in fallujah the the reporters are not entitled to information because the information may or may not involve within the ones that get to decide what information they see and the government can only hope would hold it and what they show that it needs one exception the analogy i think in your case would not be that as you're saying that you have the right to see cancellation the analogy would be if you had an proceed thank you mr chief judge may please the court mark freeman for the united states including the united states patent and trademark office i'd be happy to begin anywhere that may be of assistance to the court we do think that for the reasons the court has already expressed there is meeting the endangered species act provision that was that issue luma that we think the answer is yes when congress enacts a right for any person to go to an article three court implicit in that is a person who had meets the requirements of article  but this is a little different than the second endangered species because here you've got a bounce that congress has created this whole system is about and the patenting loses right they have a right to go and get to do so with the congress is trying to create a reexamination is in both parties are the litigation those parties would obviously have standing and in addition as we suggest in our brief competitors others would have standing this is the easy case because this is that a party who has no interest at all in the underlying patent but let me go back to your point your congress obviously intended to allow third party requesting to give useful information to the patent office to have them be quality decisions that is an extremely valuable public interest irrespective of whether  individual claimant has standing to appeal this case illustrates that because the in this case the request forced wharf to amend its claims that was a that's a benefit to the public irrespective of appeal ability and then to the sort of equal fairness point about if the patent owner can appeal why wouldn't it be the case that the that the requestor can appeal i would i would refer the court to a case that's cited in the briefs it's a bit of a complex case but i think it has a family resemblance to want to the situation here is the asarco versus kadish case in the supreme court that is a state his family resemblance because what it involved with a state court decision it was a non article three hearing agency was allowed litigation and terms that did not involve article three state courts of course not required to comply with article three and the question the supreme court grappled with in that case was there was a plaintiff and would not have had standing to bring suit in federal court no standing at all but in state court was allowed to bring a federal law claim against a defendant the defendant lost in the state supreme court and tried to go to the supreme court and the the question in the case was well this litigation could never have been in federal court in the first instance the plaintiffs couldn't have brought it but the defendant didn't choose to be there and he was as a result of a on a federal law question and what the supreme court said was we do have article three jurisdiction because the action of the of the non article three tribunal itself inflicted an injury on the defendant so the analogy in this case would be if words patent had been declared invalid worth could appeal to this court because the patent office is decision which is independently operative regardless of the underlying whether you know them certainly i mean i don't think anybody's disputing the right to do but the reason i mention this is because it was also clear in asarco that no one thought that suppose it would you probably have standing if the way this worked is that if you showed if you if a plane to fruit shop sought reexamination and of team a change in the claims then one the ownership of the  sort of bounty system that you might very well know i'm talking about something like consumer watchdog in the circumstances is it a matter of congress coming up with purposes or an intent that suggests that they think that is just so valuable and such an impact on the economy and that to mean that congress can't write a statute that allows a person who has no interest whatsoever in someone else's property to challenge the legal validity of that product designs that in certain circumstances they can do that because they challenge the pats so in that in the in the for the cases your honor if if you ask for leave put it this way if might might my friends on the other side of the courtroom here were filed for a request and didn't get what she asked for i don't have standing to ask that the sewin say that the government has to give the documents to her the reason why the that illustrates the personal nature of the for the claim it is that the the obligation under foyer for this to give the is because it is a personal injury to the requester if you take for your case or controversy but the case or controversy must be extant and we we had it in the earlier in the dialogue we refer to things like that see that they have to file in other things that the supreme court is directly addressed that in the diamond versus charles review produce your prior art that you go through the process you lose or win in the in the in the patent office of course of if you won them some undoubtedly could appeal if you lose you would have to show when you came to this court through an affidavit or a declaration that you have some reason to believe that you might be infringing the patent and that if you if you are infringing the patent and you have some reasonably that agony actually affect your real life th you would have standing and that may not be the same as an effect i think it would not be the same analysis that would follow in a departure judgement case the fact that congress has given a look at the basis for drawing that distinction what we did with justice kennedy in the  secondly the supreme court which is footnote seven of the little one decision is also in the in the majority text of the majority opinion in the in the massachusetts vs e p a case has explained that when you have the procedural rights such as the right to go to an article three court that may relax the redress ability and immediacy requirements of article three so for example in you're on a hypothetical if you follow the departure of judge matsch and you might well lose i'm writing this grounds because we have no idea song has any intention of coming after you well that the if you have some touchability just future come real but but but future possibility of that happening then the immediacy requirements of article three may be relaxed by the fact that congress has said no no we want this person if they have an injury in fact to be able to come to court and the last word we make in our brief is the is the a stop of provisions and set up a consumer watchdog which is to attach some substantial number of our members work in the area of human embryonic stem cells we don't we never been threatened with infringement of the nine month three patent but what we worry that we might want to do this type of thing this this research now or in the future and nikkei case are not entirely certain but i think that what we know is that the covenant not to sue would have to provide complete and total protection and if it were not sufficient and there were some reasonable basis to believe it was not complete and total protection then it wouldn't be good enough the other point i would add is so let me just i want to pull up on that in the terms of this kind of disassociate or something if their view was we have a few professors but representing everybody  and work came in and just get covenants not to sit in the name professors there may still be alive issues there i think there might i think there may well be your honor it would depend of course there are doctrines about representational standing a member organizational standing you would have to be in compliance of those doctrines in the end and the declarations that they would give to this court would have to provide evidence for that yes if they had if they came out of covenants to see that they were never going to infringement against any any researcher based on this person it really doesn't matter what the outcome of the p t o exactly exactly but on the other hand if they only said as to two or three members and the organizations that look we don't even maybe others you can couple with that this is a point of getting to a little bit earlier are in the act you know those provisions they don't themselves create an injury because it's consumer watchdog will never be suing on the run once we patent the fact that now or in the future they can't bring another one of these proceedings doesn't affect their real life rights but for a party that may one day face a claim it may have the effect of except essentially accelerating the controversy because it becomes a question of now or never and that we think going to close case may well tip the balance toward just disability so that the point if i may just sort of circle back and make is that it is absolutely the case that the article three injury in fact requirement applies in appeals out of p t o it is absolutely the case that an organization like consumer watchdog which has no concrete injury in fact of the it's not just an illegal injury but injury in fact from the validity of the nine one three patent has no standing but it will very often be the case that the sort of entities for whom congress enacts the screen will have that standing will be able to make that showing to this court and indeed the court's opinion in this case i expect will provide a great deal of guidance to those bringing those appeals about exactly what sort of evidence they need to show but congressman we don't think they intended to  after reviewing the government brief and having more of an opportunity to just think about that issue we think that the government's position makes the most sense and given the supreme court's statements a move on an e p a versus massachusetts where they talked about how the requirements of redress ability and immediacy would be lessened or might not even apply where you have procedural rights of keele i think the position the government takes makes a lot of sense  i also would want to point out that in preparing for this argument we did look at statistics published on the p t o s web site just reads respect a inner purdy's review proceedings and post grant review proceedings and so far of those inner parties reviewing covered business methods petition filed eighty nine percent of them on their face at the time of the filing indicate that there is a concurrent district court litigation translates into about eighty eight percent where there is a current district court litigation identified on the face of the would be seen the face the filing when they first filed that doesn't account for a situation where someone's been threatened or where after the i p r is filed someone  interest i don't think it's not i wouldn't think so i don't think you'd have to look at each circumstance but i wouldn't think that it would be if it's for free now say that we were at i was asked last time where he would draw the line and the only bright line that i could think of here would be that an organisation that claims no commercial interest in the patent is not a competitor perspective competitor a licensee or perspective licensee and has no basis for wars or membership or organizational standing and we had last article three what about an eye on the i phone  and we have a concrete interest when we are denied the decision in which we have invested time effort energy met our fractional burden of proof and given up a right and this is a right the congress gave up second like taking the temperature in washington to to figure out whether cold in los angeles is a completely measuring the wrong thing and secondly there is no place in the point that's it and they're working the government has argued that there is where it says can you can you talk to me a minute about the procedural substantive distinction here all of your concerns about your dispute with the government are on kind of a procedural level that to wish to have a right to make your arguments but is there any as you know the constitution requires this concrete injury usually economic in nature in our area you have anything of that nature that you could point to well in order to receive a final decision we had to for example pay a fee of eighty eight hundred dollars that's an economic injury that we suffered in order to become within the gate keeping matter that would be true of anyone who enters the front door again any member of the public will have to pay the fee and that without honor this unique injury in fact you win your interest that's different from the general public it was congress or the decision to make it such that everyone to reach that look i think i mean at least i understand it seems like congress intended to do exactly what you're saying they intended to do that uses versus e p a they can't just you know write something and say you have a right to appeal they still have to show some kind of concrete injury that they're trying to protect by the procedural right it can't  money sent to a third party it was congress that decided to create the statute in a way that required that the requestor pay a fee to contrast it with foil in florida it's very they make ok it's free and all you have to do with reasonably describe the documents you want you don't have to argue to the government this is why i'm entitled to the information this is why it doesn't fall within one of the nine extensions and you just my first year of law school i wanted to ask this question what does marbury vs madison had to say about this couldn't do what right jurisdiction that exceeded that the constitution requires right exactly but in this case congress relevant here in that case congress ensured that every party to of what congress was looking up an act of before you start to which was the need to get information from the government protects the first amendment right to protect the right to free speech right to the press and things like that because in order to bring effective news stories or whatever you have to be able to get information from the government and so that a concrete injury there i don't know of anything that allows you know if a this is kind of thing pretext that there is some kind of mean in the public citizen case they looked at the forces should in the context of another thing and they said you know we agree that they're standing is wasted because of this and other requests so i don't think through the dispute that the people in the foy standing because it's specific right to information requested and not exactly that's why we need to also have standing here in public citizen these that are our decisions interpreting the freedom of information act have never suggested that those requesting information under it  need show more than that they thought and were denied that the fixations the records and here it's a much easier case because congress didn't make it easy for people to request for examination they may dig up the prior art and understand how the patent work and explain congress absolutely could fix this and change it and if they didn't want to have this right here they could have said so and using the brand new standards that is advocated by our opponents would be extremely difficult to defective government not private action and if need be to remove patents that never should have been granted reiterating her point that argues with the government and the court have any further questions i think thank you very much we appreciate the double effort that both parties gave this case thank you very much