Consumer Watchdog, Public Patent Foundation Take Human Stem Cell Patent Challenge to U.S. Supreme Court

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WASHINGTON, DC – Consumer Watchdog and the Public Patent Foundation today asked the U.S Supreme Court to overturn a lower court’s decision and allow the two public interest groups to seek the cancellation of a patent on human embryonic stem cells held by the Wisconsin Alumni Research Foundation (WARF).

In its petition, Consumer Watchdog, which is represented by the Public Patent Foundation, asked the high court to overturn a June ruling from the U.S. Court of Appeals for the Federal Circuit that held the nonprofit, nonpartisan group lacks legal standing to challenge the Patent and Trademark Office (PTO)’s decision to uphold WARF’s patent.

The Appeals Court held that Consumer Watchdog was entitled to take part in administrative review of the patent by the PTO, but could not appeal the agency’s administrative decision to uphold the patent, despite a precise law giving it that right, because the group was not directly harmed by the patent.

Read Consumer Watchdog’s petition for certiorari here:

“The Court of Appeals decision raises the important Constitutional question of whether Congress and the President have the power to provide for Article III Court review of discrete administrative decisions,” Consumer Watchdog said in its petition. “The decision will impact more than just the patent system, as its reasoning could limit the power of Congress and the President to provide for court appeal of administrative responses to requests in any field.”

“The Court of Appeals’ refusal to allow Consumer Watchdog to appeal the PTO’s faulty decision to uphold a patent on human embryonic stem cells is a clear violation of the express language of statutes passed by Congress and signed by the President,” said Dan Ravicher, executive director of the Public Patent Foundation, and Consumer Watchdog's counsel in the case. “It also conflicts with the clear intent of Congress and the President to empower the public to seek revocation of invalid patents.”

“We look forward to our legal standing to challenge the human stem cell patent being confirmed by the Supreme Court so that we can then try the case on its merits,” said John M. Simpson, Consumer Watchdog’s Stem Cell Project Director. “The patent should clearly be rejected, because it covers ineligible subject matter and was obvious in view of earlier research.”

Consumer Watchdog argued that a law expressly providing requesters of agency action a right to appeal to the courts any dissatisfactory decision of the agency gives them sufficient standing necessary for the appeal to a court. The Court of Appeals, while conceding that the statute and Congressional intent are unambiguously in Consumer Watchdog’s favor, nonetheless found the non-profit didn’t have a legal interest sufficient to have standing.

The petition filed today with the Supreme Court noted that the patent law says a “…third-party requester in an inter partes reexamination proceeding, who is in any reexamination proceeding dissatisfied with the final decision in an appeal to the Board of Patent Appeals and Interferences under section 134 may appeal the decision only to the United States Court of Appeals for the Federal Circuit.”

“With no less than three separate statutes all expressing the same exact desire, Congress’ intent to confer standing on parties like Petitioner through legislation is abundantly clear,” the petition said. “A member of the Court of Appeals plainly stated as much during oral argument, saying ‘It seems like Congress intended to do exactly what you’re saying they intended to do.’ ”

The groups first filed the patent challenge in 2006 through a process called reexamination, in which third parties ask the PTO to revoke a patent that it previously issued. After reexamination, the PTO did reject the patent.  WARF then appealed to the PTO to reverse its conclusion.  WARF narrowed its claims and announced more favorable licensing terms for the patent during the challenge, and the PTO reversed it's ruling and allowed the modified patent. The modification of the claims meant that WARF's patent now covered only embryo-derived stem cells, and excluded cells derived by re-programming, a method that makes adult cells into embryonic stem cell-like cells.  However, consumer groups still believe the patent is invalid, and are pursuing the challenge.

Joining the two consumer groups in the bid to reject the patent from the beginning was Dr. Jeanne Loring, now director of the Center for Regenerative Medicine at the Scripps Research Institute in La Jolla, CA. Later in the PTO process Dr. Alan Trounson, then of Australia’s Monash University, Dr. Douglas Melton of Harvard and Dr. Chad Cowan of Harvard filed affidavits supporting the challenge.

“This is an important battle. Human embryonic stem cells hold great promise for advancing human health, and no one has the ethical right to own them,” said Dr. Loring.

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Consumer Watchdog is a nonprofit, nonpartisan consumer advocacy organization with offices in Washington, DC, and Santa Monica, CA.  Our website is:
The Public Patent Foundation at Benjamin N. Cardozo School of Law is a not-for-profit legal services organization that represents the public's interests against the harms caused by the patent system, particularly the harms caused by undeserved patents and unsound patent policy. For more information visit:

John M. Simpson
John M. Simpson
John M. Simpson is an American consumer rights advocate and former journalist. Since 2005, he has worked for Consumer Watchdog, a nonpartisan nonprofit public interest group, as the lead researcher on Inside Google, the group's effort to educate the public about Google's dominance over the internet and the need for greater online privacy.

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