No To Gene Patents: June 2014

Dolly the sheep case:

The losers, owners of the patent application, have until August 7, 2014 to appeal the case, i.e. petition the US Supreme Court for a Writ of Certiorari.

See the excerpts from the court records below.

Will the losers appeal?

I think they would be just wasting their money, unless they are just after the publicity. This may backfire, as it is in actuality negative publicity.

in the high patent court:

05/08/2014 35 OPINION filed. The decision is: Affirmed. (Precedential Opinion). (For the Court: Dyk,Circuit Judge; Moore,Circuit Judge and Wallach,Circuit Judge). [153181]

UNITED STATES COURT O}' APPEALS FOR THE FEDERAL CIRCUIT

INFORMATION SHEET

FILING A PETITION FOR A WRIT OF CERTIORARI

There is no automatic right of appeal to the Supreme Court of the United States from judgments

ofthe Federal Circuit. You must file a petition for a writ of certiorari which the Supreme Court

will grant only when there are compelling reasons. (See Rule 10 of the Rules of the Supreme

Court of the United States, hereinafter called Rules.)

Time. The petition must be filed in the Supreme Court of the United States within 90 days of

the entry ofjudgment in this Court or within 90 days of the denial of a timely petition for

rehearing. The judgment is entered on the day the Federal Circuit issues a final decision in your

case. [The time does not run from the issuance of the mandate, which has no effect on the right

to petition.] (See Rule 13 of the Rules.)

Fees. Either the $300 docketing fee or a motion for leave to proceed in forma pauperis with an

affidavit in support thereof must accompany the petition. (See Rules 38 and 39.)

Authorized Filer. The petition must be filed by a member of the bar of the Supreme Court of

the United States or by the petitioner representing himself or herself.

Format of a Petition. The Rules are very specific about the order of the required information

and should be consulted before you start drafting your petition. (See Rule 14.) Rules 33 and 34

should be consulted regarding type size and font, paper size, paper weight, margins, page limits,

cover, etc.

Number of Copies. Forty copies of a petition must be filed unless the petitioner is proceeding in

forma pauperis, in which case an original and ten copies of the petition for writ of certiorari and

of the motion for leave to proceed in forma pauperis. (See Rule 12.)

Where to File. You must file your documents at the Supreme Court.

Clerk

Supreme Court of the United States

1 First Street, NE

Washington, DC 20543

(202) 479-3000

No documents are filed at the Federal Circuit and the Federal Circuit provides no information to

the Supreme Court unless the Supreme Court asks for the information.

Access to the Rules. The current rules can be found in Title 28 of the United States Code

Annotated and other legal publications available in many public libraries.

Revised December 16, 1999

Case: 13-1407 Document: 35-4 Page: 1 Filed: 05/08/2014

On June 4, 2014 the CAFC decided the case of CW v WARF
See
The Court dismissed the appeal, i.e. threw it out of court for lack of "standing."
The entire opinion is reproduced below.

United States Court of Appeals

for the Federal Circuit

______________________

CONSUMER WATCHDOG,

(formerly known as The Foundation for Taxpayer

and Consumer Rights),

Appellant,

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.

CONSUMER WATCHDOG 2 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.

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).

CONSUMER WATCHDOG 4 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

CONSUMER WATCHDOG 6 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 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 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 circumCONSUMER

WATCHDOG 8 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

Office: San Diego	Filed: 01/16/2013
Jury Demand: Plaintiff	Demand:
Nature of Suit: 830	Cause: 35:145 Patent Infringement
Jurisdiction: Federal Question	Disposition: Dismissed - Voluntarily
County: XX US, Outside State	Terminated: 01/15/2014
Origin: 1	Reopened:
Lead Case:	None
Related Case:	None	Other Court Case: None
Defendant Custody Status:
Flag: CLOSED

No To Gene Patents

Saturday, June 14, 2014

The Empire Loses Big - Again

Is Dolly the Sheep Appealing?

Dolly and the Fishes

Case Summary

Wednesday, June 11, 2014

Patent for a Down Syndrome Test

Lest we forget...

The Sequenom case involves a Patent for a Down Syndrome Test

throw it out of court,

Monday, June 9, 2014

Will CW Appeal?

Sunday, June 8, 2014

CW v WARF decided