United States Court of Appeals 

for the Federal Circuit ______________________ 

CONSUMER WATCHDOG,

(formerly known as The Foundation for Taxpayer 

and Consumer Rights),

Appellant,

v.

WISCONSIN ALUMNI RESEARCH FOUNDATION,

Appellee.

______________________ 

2013-1377

______________________ 

Appeal from the United States Patent and Trademark 

Office, Patent Trial and Appeal Board in Reexamination 

No. 95/000,154.

______________________ 

Decided: June 4, 2014 

______________________ 

SABRINA Y. HASSAN, Public Patent Foundation Benjamin N. Cardozo School of Law, of New York, New York, 

argued for appellant. With her on the Brief was DANIEL 

B. RAVICHER. 

KARA F. STOLL, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, of Washington, DC, argued for 

appellee. With her on the brief were WILLIAM B. RAICH

and SARAH E. CRAVEN. 
2 CONSUMER WATCHDOG v. WISCONSIN ALUMNI RESEARCH

MARK R. FREEMAN, Attorney, Appellate Staff, Civil 

Division, United States Department of Justice, of Washington, DC, argued for amicus curiae. With him on the 

brief were STUART F. DELERY, Assistant Attorney General 

and SCOTT R. MCINTOSH, Attorney. Of counsel on the 

brief were NATHAN K. KELLEY, Solicitor, and SCOTT C.

WEIDENFELLER, Senior Counsel for Patent Law and 

Litigation, United States Patent and Trademark Office, of 

Alexandria, Virginia. 

______________________ 

Before PROST,* Chief Judge, RADER,** and HUGHES, Circuit 

Judges.

RADER, Circuit Judge. 

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. 

I.

Consumer Watchdog is a self-described “not-for-profit 

public charity dedicated to providing a voice for taxpayers 

and consumers in special interest-dominated public 

discourse, government and politics.” Appellant’s Br. 1. In 

2006, Consumer Watchdog requested inter partes reexamination of the ’913 patent, which is owned by Appellee 

Wisconsin Alumni Research Foundation (WARF). J.A. 

106. The ’913 patent is generally directed to human 

embryonic stem cell cultures. E.g., ’913 patent abst. 

* Sharon Prost assumed the position of Chief Judge

on May 31, 2014. ** Randall R. Rader vacated the position of Chief

Judge on May 30, 2014.

 
CONSUMER WATCHDOG v. WISCONSIN ALUMNI RESEARCH 3

Consumer Watchdog has not alleged any involvement 

in research or commercial activities involving human 

embryonic stem cells. Nor has it alleged that it is an 

actual or prospective competitor of WARF or licensee of 

the ’913 patent. Instead, Consumer Watchdog simply 

alleges that WARF’s “broad and aggressive assertion of 

the ’913 patent has put a severe burden on taxpayerfunded research in the State of California where [Consumer Watchdog] is located.” Appellant’s Br. 2. Indeed, 

Consumer Watchdog states that it filed the reexamination 

request because it was concerned that the ’913 patent 

allowed WARF to completely preempt all uses of human 

embryonic stem cells, particularly those for scientific and 

medical research. Id. Consumer Watchdog was ultimately unsuccessful in the reexamination, however, and filed

the present appeal. 

II.

Federal courts do not have authority to entertain 

every dispute. Relevant to this appeal, Article III only 

allows the federal courts to adjudicate “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. Ostensibly, 

these broad terms could cover a wide range of disputes. 

Over the years, however, the federal courts have developed a variety of doctrines to clarify that Article III limits 

the federal courts’ jurisdiction to those disputes seeking to 

“redress or prevent actual or imminently threatened 

injury to persons caused by private or official violation of

law.” Summers v. Earth Island Inst., 555 U.S. 488, 492–

93 (2009). These doctrines—including standing, ripeness, 

and mootness—distinguish justiciable disputes from those 

that are not. Prasco, LLC v. Medicis Pharm. Corp., 537 

F.3d 1329, 1336 (Fed. Cir. 2008). Collectively, these 

doctrines represent a fundamental limitation on the 

authority of the federal courts. Hollingsworth v. Perry, 

133 S. Ct. 2652, 2661 (2013). 
4 CONSUMER WATCHDOG v. WISCONSIN ALUMNI RESEARCH

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.

That said, where Congress has accorded a procedural 

right to a litigant, such as the right to appeal an administrative decision, certain requirements of standing—

namely immediacy and redressability, as well as prudential aspects that are not part of Article III—may be relaxed. See Massachusetts v. E.P.A., 549 U.S. 497, 517–18 

(2007). However, the “requirement of injury in fact is a 

hard floor of Article III jurisdiction that cannot be removed by statute.” Summers, 555 U.S. at 497. That 

injury must be more than a general grievance, Hollingsworth, 133 S. Ct. at 2662, or abstract harm, City of 

Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). 
CONSUMER WATCHDOG v. WISCONSIN ALUMNI RESEARCH 5

Indeed, “a disagreement, however sharp and acrimonious it may be” will not suffice for the injury in fact 

requirement. Hollingsworth, 133 S. Ct. at 2661 (internal 

quotations and citation omitted). Rather, the party 

invoking federal jurisdiction must have “a personal stake 

in the outcome.” Lyons, 461 U.S. at 101. The personal 

stake in the outcome—and injury in fact—generally will 

be easier to show where the party seeking to invoke the 

federal courts’ jurisdiction is the object of the complained 

of action (or inaction). Lujan, 504 U.S. at 561. By contrast, where a party is alleging an injury arising from the 

government’s allegedly unlawful action or inaction pertaining to a third party, injury in fact is much more 

difficult to prove. Id. at 561–62.

III.

With these principles in mind, this court turns to 

Consumer Watchdog’s appeal. Consumer Watchdog does 

not identify any alleged injury aside from the Board

denying Consumer Watchdog the particular outcome it 

desired in the reexamination, i.e., canceling the claims of 

the ’913 patent. Appellant’s Br. in Response to United 

States 3. Consumer Watchdog does not allege that it is 

engaged in any activity involving human embryonic stem 

cells that could form the basis for an infringement claim. 

It 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.

To be sure, “Congress may enact statutes creating 

legal rights, the invasion of which creates standing, even 

though no injury would exist without the statute.” Linda 

R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973) (citations 
6 CONSUMER WATCHDOG v. WISCONSIN ALUMNI RESEARCH

omitted). That principle, however, does not simply override the requirement of injury in fact. Lujan, 504 U.S. at 

578. Here, the Board’s disagreement with Consumer 

Watchdog did not invade any legal right conferred by the 

inter partes reexamination statute. 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.

For this reason, Consumer Watchdog’s analogy to the 

Freedom of Information Act (FOIA) and Federal Election 

Campaign Act (FECA) is unpersuasive. These acts created substantive legal rights—access to certain government 

records—the denial of which inflicts a concrete and particularized injury in fact. See FEC v. Akins, 524 U.S. 11, 

21 (1998). Unlike the plaintiffs in the FOIA and FECA 

cases, Consumer Watchdog was not denied anything to 

which it was entitled. Consumer Watchdog was permitted to request reexamination and participate once the 

PTO granted its request. This is all the statute requires. 

See generally 35 U.S.C. §§ 311–318. Accordingly, unlike 

the FOIA and FECA cases, the PTO did not abridge any 

of Consumer Watchdog’s rights. See Lujan, 504 U.S. at 

562 (“[W]hen the plaintiff is not himself the object of the 

government action or inaction he challenges, standing is 

not precluded, but it is ordinarily ‘substantially more 

difficult’ to establish.”) (quoting Allen v. Wright, 468 U.S. 

737, 758 (1984)). 

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. See
CONSUMER WATCHDOG v. WISCONSIN ALUMNI RESEARCH 7

Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 

S. Ct. 1377, 1386 (2014). To be clear, a statutory grant of 

a procedural right may relax the requirements of immediacy and redressability, and eliminate any prudential 

limitations, Massachusetts, 549 U.S. at 517–18, which 

distinguishes the present inquiry from that governing a 

declaratory judgment action. 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.”).

The estoppel provisions contained within the inter 

partes reexamination statute likewise do not constitute 

an injury in fact for Article III purposes. 35 U.S.C. 

§ 317(a), (b). Consumer Watchdog is not engaged in any 

activity that would give rise to a possible infringement 

suit. Nor does Consumer Watchdog provide any indication that it would file another request seeking to cancel 

claims at the Patent Office. In any event, as Consumer 

Watchdog only has a general grievance against the ’913 

patent, the “conjectural or hypothetical” nature of any 

injury flowing from the estoppel provisions is insufficient 

to confer standing upon Consumer Watchdog. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344 (2006); 

Warth v. Seldin, 422 U.S. 490, 509 (1975); see also SeaLand Serv., Inc. v. Dep’t of Transp., 137 F.3d 640, 648 

(D.C. Cir. 1998); cf. also Ass’n for Molecular Pathology v. 

U.S. Patent & Trademark Office, 689 F.3d 1303, 1323

(Fed. Cir. 2012) (holding various plaintiffs lacked standing in declaratory judgment action because alleged injuries were too speculative), rev’d on other grounds sub nom. 

Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 

133 S. Ct. 2107, 2114 (2013). The court, however, leaves 

it to future panels to decide whether, under other circum-
8 CONSUMER WATCHDOG v. WISCONSIN ALUMNI RESEARCH

stances, the preclusive effect of the estoppel provisions 

could constitute an injury in fact. 

In sum, aside from its procedural right to appeal, 

Consumer Watchdog has only alleged a general grievance 

concerning the ’913 patent. It states that it is a nonprofit 

consumer rights organization that is concerned about the 

potential preemptive reach of the ’913 patent and the 

alleged burden it places on taxpayer-funded research in 

the State of California. Appellant’s Br. 1–2. While Consumer Watchdog is sharply opposed to the Board’s decision and the existence of the ’913 patent, that is not 

enough to make this dispute justiciable. Lujan, 504 U.S. 

at 577. 

IV.

Because Consumer Watchdog has not identified a 

particularized, concrete interest in the patentability of the 

’913 patent, or any injury in fact flowing from the Board’s 

decision, it lacks standing to appeal the decision affirming 

the patentability of the amended claims. The court has 

considered Consumer Watchdog’s remaining arguments to 

the contrary, but finds them unpersuasive. Accordingly, 

Consumer Watchdog’s appeal is dismissed.

DISMISSED