About a month ago we posted an article on the dismissal of Consumer Watchdog’s appeal at the Court of Appeals for the Federal Circuit following a loss at the USPTO in an inter partes reexamination. Consumer Watchdog, Inc. had petitioned the U.S. Patent Office to review a stem cell patent owned by the Wisconsin Alumnae Research Foundation (WARF). A reexamination was conducted but the patent survived the challenge. Consumer Watchdog then appealed the government’s refusal to invalidate the WARF patent.

In Wisconsin Alumni Research Foundation, 753 F.3d 1258  (Fed. Cir. 2014), a three-judge panel of the CAFC found that a non-profit entity “dedicated to providing an effective voice for taxpayers and consumers” lacked standing to appeal to an Article III Court despite the statute’s general statement of a right to appeal. In the panel decision, written by Judge Rader, the court found that Consumer Watchdog, Inc., simply had “not identified a particularized, concrete interest in the patentability of the [patent at issue], or any injury in fact flowing from the Board’s decision.”

Well . . . unwilling to go quietly into the night . . . Consumer Watchdog has now petitioned the U.S. Supreme Court for certiorari review of the Federal Circuit decision. The Petition asserts that the Federal Circuit’s decision had failed to take into account cases concerning the Freedom of Information Act (FOIA) and the Federal Election Campaign Act, where the Supreme Court has upheld laws giving third parties standing to appeal agency actions.

Consumer Watchdog’s petition cites NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 221 (1978) and Public Citizen v. United States Dep’t of Justice, 440 U.S. 440, 449 (1989), for the general rule that any person—citizen or not—can make a FOIA request and when a dissatisfied requestor wishes to appeal an administrative FOIA decision, they need only show that they made a FOIA request and were not satisfied with the result. They do not need to show they suffered direct harm. According to Consumer Watchdog, “[a]ny attempt to justify FOIA standing based on some underlying substantive right is unfounded. It is the statute, and the statute alone, that justifies standing.”

According to Consumer Watchdog, if Congress can confer standing to the public-at-large to appeal federal agency decisions concerning FOIA requests or election results, then its decision to confer standing to the public-at-large for appeals in patent challenges should likewise be respected.

Stay tuned for further developments.