Denial of inter partes reexam does not by itself confer standing

Consumer Watchdog v. Wisconsin Alumni Research Foundation, ___ F.3d ___ (Fed. Cir. June 4, 2014) (RADER, Prost, Hughes) (PTAB) (3 of 5 stars)

Federal Circuit dismisses PTAB appeal due to lack of standing for failure to establish an injury in fact.

Federal Circuit dismisses appeal of the PTAB's affirmance of patentability in an inter partes reexamination because the Appellant failed to establish a concrete and particularized injury in fact and thus lacked Article III standing. Even though the inter partes reexamination statute allows a third-party requestor (such as appellant) to appeal decisions from the PTAB, "the grant of a procedural right, e.g., the right to appeal, does not eliminate the requirement of Article III" for the appeal. Slip op. at 6. In this case, the third-party requestor lacked a concrete stake in the outcome of the proceeding and thus lacked an injury in fact. Further, the PTAB's refusal to disturb the patentability of the challenged claims did not deny any legal right to which the Appellant was entitled. In addition, the estoppel provisions of the inter partes reexamination statute did not constitute an injury in fact because the Appellant was not engaged in activity likely to give rise to a possible infringement suit and provided no indication that it would file another request to cancel claims. The Fed Cir, however, left open the possibility that the preclusive effect of the estoppel provisions could constitute an injury in fact for other Appellants in different circumstances. Id. at 7-8.