Right to Appeal from PTAB Decisions Questioned in Federal Circuit Decision

Authored by A. Antony Pfeffer

Today in Consumer Watchdog v. Wisconsin Alumni Research Foundation, the Federal Circuit ruled that the requestor of an inter partes reexamination did not have the right to appeal an adverse decision by the Patent Trial and Appeal Board. Consumer Watchdog requested inter partes reexamination of a patent owned by the Wisconsin Alumni Research Foundation (“WARF”) relating to human embryonic stem cell cultures. The request was granted, but Consumer Watchdog ultimately received an adverse decision (patentability of claims affirmed). In its appeal briefs, Consumer Watchdog did not allege “any involvement in research or commercial activities involving human embryonic stem cells.” Nor did it allege that it was an actual or prospective competitor of WARF or any of its licensees. Instead, Consumer Watchdog alleged that “WARF’s ‘broad and aggressive assertion of the ’913 patent has put a severe burden on taxpayer funded research in California where [Consumer Watchdog] is located.” Opinion at 3.

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