# 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.

______________________

Deci ded: June 4, 2014

______________________

S ABRINA Y. H ASSAN , Public Patent Foundation Be njamin N. Cardozo School of Law, of New York, New York, argued for appellant. With her on the Brief was D ANIEL B. R AVICHER

.

K

ARA F. S TOLL , Finnegan, Henderson, F a rabow, Ga rrett & Dunner, LLP, of Washington, DC, argued for appellee. With her on the brief were W ILLIAM B. R AICH and S ARAH E. C RAVEN

.CONSUMER WATCHDOG v. WISCONSIN ALUMNI RES EARCH 2

M ARK R. F REEMAN , Attorney, Appellate Staff, Civil Division, United States Department of Justice, of Was hington, DC, a rgued for amicus curiae. With him on the brief were S TUART F. D ELERY , Assistant Attorney General and S COTT R. M C I NTOSH , Attorney. Of counsel on the brief were N ATHAN K. K ELLEY , Solicitor, and S COTT C. W EIDENFELLER , Senior Counsel for Patent Law and Litigation, United States Patent and Trademark Office, of Alexandria, Virginia.

______________________

Before P ROST , * Chief Judge

, R ADER , ** and H UGHES , Circuit Judges

. R ADER , C ircuit 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). B ecause Consumer Watchdog has not established an injury in fact sufficient to confer Article III standing

, however, this court d ismisses 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 200 6, Consumer Watchdog requested inter partes reexa mination 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 paten t 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 RES EARCH 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 “ br oad and aggressive assertion of the ’913 patent has put a severe burden on taxpayer

funded research in the State of California where [Co nsumer Watchdog] is located.” Appellant’s Br. 2. Indeed, Consu mer Watc hdog 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 ultimat ely unsuccessful in the reexamination, however, and filed
t he 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 “Co ntroversies.” U.S. Const. a rt

. III

, § 2, cl. 1. O stensibly

, these broad terms could cover a wide range of disputes

. O ver the years

, however, the federal courts have deve loped 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 per sons caused by private or official violation of law.” Summers v. Earth Island Inst. , 555 U.S. 488, 492

– 93 (2009). These doctrines

— including standin g, 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 federa l courts

. Hollingsworth v. Perry

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

T he present appeal concerns Article III standing. T o 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 cha llenged 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 constitu tional requirements for standing apply on appeal, just as they do before district courts. Hollingsworth , 133 S. Ct. at 2661. Accordingly, t hese r equirements apply with equal force to appeals from administrative agencies

, such as the U.S. Patent and Trade mark 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 constit utional 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 admini strative decision, certain requirements of standing

— namely immediacy and redress a bility

, as well as prude ntial aspects that are not part of Article III

— may be r elaxed. 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 r emoved 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 RES EARCH 5

Indeed

, “ a disagreement, however sharp and acrim onious 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 in action). Lujan , 504 U.S. at 561. By co ntrast, where a party is alle ging an injury arising from th e government’s allegedly unlawful action or inaction pe rtaining 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 activ ity. Nor does it allege that it is an actual or prospective licensee , or that it ha s any other connection to the ’913 patent or the claimed subject matter . Instead, Consumer Watchdog relies on t he 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) (citationsCONSUMER WATCHDOG v. WISCONSIN ALUMNI RES EARCH 6

omitted). That principle, however, does not simply ove rride 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 allow ed any third party to request reexamination, and

, where granted, allow ed the third par ty to partic ipate. 35 U.S.C. §§ 311(a), 314(b)(2) (20 06 ). The statute did not guarantee a particular outcome favorable to the requester. See generally 35 U.S.C. §§ 311

– 318 (20 06 ). 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 crea ted substantive legal rights

— access to certain governm ent records

— the denial of which inflicts a concrete and pa rticularized 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 permi tted 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 abri dge 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 p recluded, but it is ordinarily ‘ substantial ly more difficult’ to establ ish. ”) (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 pa tentability. 35 U.S.C. § 315(b). A statut ory grant of a procedur al right , e.g., right to appeal, does not eliminate the requirements of Article III. SeeCONSUMER WATCHDOG v. WISCONSIN ALUMNI RES EARCH 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 immed iacy 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 ac tion . 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 depr ivation

— 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 indic ation that it would file another request seeking to cancel claims at the Patent Office. In any ev ent, as Consumer Watchdog only has a general grievance against the ’913 patent, the “conjectural or h ypothetical ” nature of any injury flowing from the estoppel provisions is insufficient
to confer standing upon Consumer Watchdog. Dai mlerChrysler Corp. v. Cuno , 547 U.S. 332, 344 (2006) ; Warth v. Seldin , 422 U.S. 490, 509 (1975) ; see also Sea

Land 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 stan ding in declaratory judgment action because alleged inj uries 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)

. T he court , however, leaves it to future panels to decide whether, under other circu m-CONSUMER WATCHDOG v. WISCONSIN ALUMNI RES EARCH 8

stances
, the preclusive effect of the estoppel provisions could constitute an injury in fact.

In sum , aside from its procedural right to appeal

, Consumer Watchdo g 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 Co nsumer Watchdog is sharply opposed to the Board’s dec ision and the existence of the ’913 patent, t hat is not enough to make this dispute justiciable

. Lujan , 504 U.S. at 577.

IV.

Becaus e 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 f inds them unpersuasive. Accordingly, Consumer Watchdog’s appeal is dismissed.

DISMISSED